Tuesday, March 9, 1993

1 2 3 4 5 6 7 8 9 ALBANY, NEW YORK 10 March 9, 1993 11 3:39 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 SENATOR JAMES J. LACK, Acting President 19 STEPHEN F. SLOAN, Secretary 20 21 22 23 1 P R O C E E D I N G S 2 ACTING PRESIDENT LACK: The 3 Senate will come to order. 4 Please rise for the Pledge of 5 Allegiance. 6 (The assemblage repeated the 7 Pledge of Allegiance to the Flag.) 8 The prayer this afternoon will be 9 given by the Reverend Tom Stiles, Pastor of the 10 First Baptist Church in West Seneca. Reverend? 11 REVEREND TOM STILES: Heavenly 12 Father, I thank You for a beautiful day. We 13 have to confess that we are a strange people 14 though. We take Your many blessings for 15 granted. We take a beautiful day for granted 16 until there's bad weather. We take our health 17 for granted until we're sick. Electricity is 18 something we're used to and take advantage of 19 every day, but then when the power is off we are 20 quick to complain. 21 And so, Father, I pray that today 22 we be a thankful people. I pray that freedom 23 would be something that we would be very 1 thankful for today, the liberty that we enjoy 2 because our forefathers had a vision and a dream 3 of a country of liberty. As we look at the 4 world scene, we see all these problems, Father, 5 and so we're thankful that we live in America. 6 I thank You for these men and 7 women that lead our great state, and I pray, 8 Father, that You give them wisdom today that 9 they might know what to do about the complex 10 issues that are facing our state. Help them to 11 understand that the purpose of government is to 12 punish evil, to promote goodness, to protect the 13 innocent, including the most innocent of all, 14 the unborn, to provide services for the general 15 well-being of our citizens. 16 Grant them Your blessing today. 17 Give them Your wisdom and guidance that the 18 decisions they make might be good. Thank You 19 for the privilege of liberty. May we always 20 protect it and defend it. In Jesus' name. 21 Amen. 22 ACTING PRESIDENT LACK: Thank you 23 very much. 1 Reading of the Journal. 2 THE SECRETARY: In Senate, 3 Monday, March 8th. The Senate met pursuant to 4 adjournment, Senator Farley in the Chair upon 5 designation of the Temporary President. The 6 Journal of Friday, March 5th, was read and 7 approved. On motion, Senate adjourned. 8 ACTING PRESIDENT LACK: Hearing 9 no objection, the Journal stands approved as 10 read. 11 Motions and resolutions. Senator 12 Present, we have a Resolution Calendar. 13 SENATOR PRESENT: Mr. President, 14 I move the adoption of the Resolution Calendar. 15 SENATOR GOLD: Yeah. Can we hold 16 Senator Larkin's 619, or at least open it up for 17 membership in the entire house? 18 SENATOR LARKIN: We can. 19 SENATOR GOLD: Don't need to hold 20 it, but you want to -- hold on. If I can just 21 point out to the chamber, this is a resolution 22 asking that a day of remembrance for the victims 23 of the Holocaust in the Warsaw ghetto uprising 1 and I know I and I assume many people would want 2 to be on it, so you want to put them all. Why 3 don't you take care of it? It's yours. 4 ACTING PRESIDENT LACK: Senator 5 Larkin. 6 SENATOR LARKIN: Mr. President, 7 on this Legislative Resolution 619 which was 8 asked by a constituent of mine who is a 9 Holocaust survivor, we put this resolution in, 10 and I would like to ask the members to please 11 join us so that we don't forget something that 12 will be a mark in international history. 13 ACTING PRESIDENT LACK: May I see 14 the hands of those Senators who would like to go 15 on Resolution Number 619? And, Senator Larkin, 16 with your permission and that of Senator Present 17 and Senator Gold, for those members who are not 18 here, the resolution will stay at the desk until 19 after session and, as you come to session, if 20 you'd like to be on Resolution 619, so indicate 21 so the desk, and you'll be placed on the 22 resolution until the end of the day. 23 Senator Present, is that all 1 right with you? 2 (Senator Present nods head.) 3 ACTING PRESIDENT LACK: On the 4 resolution -- with that understanding, on the 5 Resolution Calendar, all those in favor signify 6 by saying aye. 7 (Response of "Aye.") 8 Contrary nay. 9 (There was no response. ) 10 The Resolution Calendar is 11 adopted. 12 Senator Cook. 13 SENATOR COOK: Mr. President, I 14 offer up the following privileged resolution, 15 waive its reading and ask its immediate 16 adoption. 17 ACTING PRESIDENT LACK: Secretary 18 will read its title. 19 THE SECRETARY: Legislative 20 Resolution, by Senator Cook, proclaiming the 21 month of March as Music in our Schools Month in 22 Sullivan County. 23 ACTING PRESIDENT LACK: All those 1 in favor, aye. 2 (Response of "Aye.") 3 Contrary nay. 4 (There was no response.) 5 The resolution is adopted. 6 Senator Mega for a privileged 7 resolution. 8 SENATOR MEGA: Mr. President, I 9 offer up the following privileged resolution and 10 ask that it be read in its entirety. 11 ACTING PRESIDENT LACK: Secretary 12 will so read. 13 THE SECRETARY: Legislative 14 Resolution, by Senators Mega, Marino and other 15 members of the Senate: Legislative Resolution 16 commending the city of New York, its citizens, 17 servants, police, firefighters, and emergency 18 medical personnel for their superlative efforts 19 during the bombing of the World Trade Center. 20 WHEREAS, consistent with the 21 duties of this legislative body to recognize the 22 contributions and achievements of the citizens 23 of this Empire State, we pay just tribute to the 1 men, women and children of the city of New York 2 for their response during the aftermath of the 3 bombing of the World Trade Center; 4 Attendant to such duty and fully 5 in accord with our long-standing traditions, we, 6 the elected representatives of the citizens of 7 the state of New York, duly assembled in this 8 legislative body, pause in our deliberations to 9 convey our deepest gratitude to the emergency 10 services personnel and our highest praise to the 11 people of the city of New York for the 12 unparalleled skill and impressive adeptness with 13 which they handled this terrible tragedy; 14 During the afternoon of Friday, 15 February 26th, a bomb of tremendous force and 16 unknown origin, was detonated in the parking 17 garage under the Twin Towers at the World Trade 18 Center, killing at least five people, injuring 19 more than a thousand and forcing the closing of 20 the Twin Towers; 21 As a nation watched, thousands 22 fled down smoke-filled stairways emerging from 23 New York's most prominent landmark overcome by 1 smoke, covered in soot and breathing fumes; 2 Thanks to the timely response of 3 emergency and volunteer personnel, including 4 police, fire and rescue personnel from 5 Manhattan, Brooklyn, Queens, Staten Island and 6 New Jersey, the injuries were mercifully kept to 7 a minimum and most, if not all, could be treated 8 at local hospitals and released within hours; 9 The dedication to duty and 10 unwavering devotion displayed by these 11 individuals reflect proudly upon themselves, 12 their communities and this state, proving once 13 again the true character of all New Yorkers and, 14 in turn, this great nation; 15 The toll in human suffering is 16 only outweighed by the acts of extraordinary 17 courage and heroism shown by those who were 18 unwittingly caught by a savage act of cruelty; 19 We, the duly assembled members of 20 this legislative body, are compelled to pause 21 and honor but a few of those acts of courage 22 knowing that in doing so they symbolize all the 23 selfless acts performed this day, too numerous 1 to mention, and so we praise the Fire Lieutenant 2 and the Port Authority Police Lieutenant who 3 rescued the children of two Brooklyn public 4 schools, who were trapped in an elevator near 5 the observation deck; we praise the 6 teachers and parents of those children who, 7 trapped in that elevator for over five hours, 8 were able to overcome their own anxiousness to 9 keep the children calm and entertained until 10 they were rescued; we praise those who, by 11 helicopter in high winds and limited visibility, 12 evacuated a pregnant woman from the roof of one 13 of the towers; we praise those firefighters and 14 paramedics who carried a second pregnant woman 15 down 44 flights of stairs to deliver her baby at 16 St. Vincent's Hospital; and, in addition, we 17 praise all those whose acts of heroism are 18 unknown due to the modesty of those who 19 performed them; 20 We commend the Police 21 Commissioner, Raymond Kelly, Fire Commissioner 22 Carlos Rivera, Deputy Mayor for Public Safety 23 Fritz Alexander, Executive Director Stanley 1 Brezenoff of the Port Authority and 2 Superintendent of the Port Authority Police, 3 Charles Knox, whose personnel performed so 4 superbly in the City's time of need; 5 Because we can not forget the 6 memory of those whose senseless murder must not 7 go unpunished, it is the intent of this 8 legislative body to express our deepest 9 condolences to the families of Stephen Knapp of 10 Staten Island; John DiGiovanni of Valley Stream; 11 Monica Smith of Seaford; Robert Kirkpatrick of 12 Suffern; William Macko of Bayonne, New Jersey 13 and to the family of Wilfredo Mercado, who we 14 hope and pray is found alive; 15 The Twin Towers serve as a symbol 16 of our, and indeed the nation's industriousness 17 and high aspirations, and this shocking act of 18 desperation should only serve to strengthen our 19 resolve against the methods of terror; 20 We cannot allow ourselves to 21 submit to those whose actions are motivated by 22 fear, hatred and disregard for human life for, 23 if we do, we have surrendered more than they 1 could ever take from us; 2 NOW, THEREFORE, BE IT RESOLVED 3 that this legislative body pause in its 4 deliberations and commend the city of New York 5 and its citizens, the police, fire and emergency 6 services personnel for their outstanding conduct 7 during the tragedy at the World Trade Center, 8 fully confident that such pause indicates our 9 shared commitment to the ideals of community 10 service and the preservation of human life, 11 which are our American heritage; and 12 BE IT FURTHER RESOLVED that our 13 devotion to the security and safety of these 14 United States, conjoined with our national 15 government's commitment, shall shield our 16 citizens from further peril and reinforce their 17 peace of mind, and 18 BE IT FURTHER RESOLVED that 19 copies of this resolution, suitably engrossed, 20 be transmitted to the office of the Mayor of the 21 city of New York, Police Commissioner Raymond 22 Kelly, Fire Commissioner Carlos Rivera, Deputy 23 Mayor for Public Safety Fritz Alexander, 1 Executive Director of the Port Authority Stanley 2 Brezenoff, and Superintendent Charles Knox of 3 the Port Authority Police. 4 ACTING PRESIDENT LACK: Senator 5 Mega. 6 SENATOR MEGA: Mr. President. 7 Thank you, Mr. President and my colleagues. 8 That was a long resolution, and I thank you for 9 the attentiveness that you showed in listening 10 to the resolution. 11 The resolution really states all 12 that has to be stated as far as that incident 13 that occurred in New York City that was both at 14 the same time a tremendous, tremendous tragedy, 15 and yet it was something that was good, if I 16 could put it that way, as far as New Yorkers 17 were concerned because, you know, New York City 18 most times takes a bad rap. 19 We have our problems in New York 20 City. We have our problems in all the large 21 cities in this country, but the people of New 22 York City rose to the occasion individually and 23 as a group, and I'm proud to say that I am a New 1 Yorker and I'm proud of all the individuals that 2 were involved in doing what had to be done to 3 make that day a less onerous day than it was, 4 and I would ask that all my colleagues join in 5 this resolution. 6 Thank you, Mr. President. 7 ACTING PRESIDENT LACK: Senator 8 Goodman. 9 SENATOR GOODMAN: Mr. President, 10 I very much appreciate Senator Mega's thought 11 fulness in introducing this resolution and, 12 obviously, the full body will subscribe to it in 13 its entirety. 14 I would like to say very briefly, 15 Mr. President, that as chairman of the Senate 16 Investigations Committee, I paid a visit for 17 purposes of inspecting the site with four 18 members of my staff last Friday, to the World 19 Trade Center, and we had the opportunity to 20 observe at close range the damage which was 21 caused by the bomb that went off at the center. 22 I would have my colleagues know 23 that we really should be deeply thankful that 1 only five people, possibly six, lost their lives 2 in this incident, because the sheer physical 3 magnitude of this damage was absolutely 4 staggering. We were taken through the F.B.I. 5 lines to inspect the crater which was at least 6 six stories in its total depth, and enormously 7 wide, and metal beams and metal doors were 8 crumpled like tin foil, and the sheer and 9 extraordinary scope of this blast was absolutely 10 astounding. 11 I rise at this moment to say not 12 only that, of course, we subscribe to Senator 13 Mega's resolution, but also that the investigat 14 ive arm of this body will be doing its utmost to 15 try to explore the basis on which the safety 16 precautions which were lacking in the World 17 Trade Center can be cured so that we will not 18 have a recurrence of the type of incident that 19 developed in this situation, specifically, as I 20 dare say my colleagues are aware, there were no 21 lights in the stairwells. There is no pressuri 22 zation of the stairwells nor any venting to 23 avoid the rising to the 110th floor of black 1 acrid smoke within ten minutes after the blast. 2 There was no public address system so that 3 instructions could be issued to those who were 4 in the building at the time, and it is an 5 extraordinary testament, particularly to those 6 who had to evacuate the building, that despite 7 the lack of any safety instructions of any kind, 8 they were able in a reasonably orderly way to 9 depart. 10 Some did it by descending; some 11 did it by ascending to the roof including, as 12 you know, a group of school children who were 13 taken off by helicopter. It is my belief, Mr. 14 President, that this body can and will render a 15 service when the report of the Investigations 16 Committee is -- comes through for the purpose of 17 highlighting the minimal safety precautions 18 which must be taken in high rise buildings like 19 this, especially those which may be subject to 20 terrorist attack. 21 There'll be more said about this 22 later, but I did want the body to know that its 23 investigative arm will be very much involved in 1 an attempt to avoid a recurrence of the enormous 2 potential hazards which, thank God, were not 3 realized in this case. 4 ACTING PRESIDENT LACK: On the 5 resolution, all in favor aye. 6 (Response of "Aye.") 7 Contrary, nay. 8 SENATOR GOLD: Mr. President. 9 ACTING PRESIDENT LACK: Excuse 10 me, Senator Gold. With Senator Goodman's 11 permission, would all those who are -- Senator 12 Mega's permission, I should say. I'm sorry. 13 SENATOR MEGA: Thank you. 14 Senator Goodman may have spoken a little longer 15 than I did, but it is my resolution. Thank you. 16 ACTING PRESIDENT LACK: My 17 apologies, Senator Mega. 18 For those members who are not - 19 there are over 40 members already on that reso 20 lution. As with Senator Larkin's resolution, 21 for those members who are not on the resolution, 22 please indicate now or by the end of session. 23 On the resolution, all in favor 1 signify by saying aye. 2 (Response of "Aye.") 3 Contrary nay. 4 (There was no response. ) 5 The resolution is adopted, and it 6 will remain in the chamber until the end of 7 session for all those who wish to co-sponsor it 8 but have not yet had the opportunity to do so. 9 Senator Present, we're ready for 10 the Calendar. 11 SENATOR PRESENT: Mr. President, 12 let's take up the non-controversial calendar, 13 please. 14 ACTING PRESIDENT LACK: Third 15 reading, non-controversial, Secretary will read 16 please. 17 THE SECRETARY: On page 7, 18 Calendar Number 134, by Senator Skelos, Senate 19 Bill Number 950, an act to amend the Family 20 Court Act and the Criminal Procedure Law. 21 ACTING PRESIDENT LACK: Last 22 section. 23 THE SECRETARY: Section 2. This 1 act shall take effect - 2 ACTING PRESIDENT LACK: Call the 3 roll. 4 (The Secretary called the roll. ) 5 THE SECRETARY: Ayes 48. 6 ACTING PRESIDENT LACK: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 138, by Senator Saland, Senate Bill Number 2363, 10 an act to amend the Social Services Law. 11 SENATOR SALAND: Mr. President, 12 lay that aside for the day, please. 13 ACTING PRESIDENT LACK: Lay it 14 aside all day, please. 15 THE SECRETARY: Calendar Number 16 151, by Senator Saland, Senate Bill Number 1554, 17 an act to amend the Criminal Procedure Law. 18 ACTING PRESIDENT LACK: Last 19 section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 ACTING PRESIDENT LACK: Call the 23 roll. 1 (The Secretary called the roll. ) 2 THE SECRETARY: Ayes 49. 3 ACTING PRESIDENT LACK: The bill 4 is passed. 5 THE SECRETARY: Calendar Number 6 152, by Senator Volker, Senate Bill Number 2025, 7 an act to amend the Civil Practice Law and 8 Rules. 9 ACTING PRESIDENT LACK: Last 10 section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 ACTING PRESIDENT LACK: Call the 14 roll. 15 (The Secretary called the roll. ) 16 THE SECRETARY: Ayes 49. 17 ACTING PRESIDENT LACK: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 153, by Senator Present, Senate Bill Number 21 2063, an act to amend the Criminal Procedure 22 Law. 23 ACTING PRESIDENT LACK: Last 1 section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT LACK: Call the 5 roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 50. 8 ACTING PRESIDENT LACK: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 154, by Senator Johnson, Senate Bill Number 12 2153, an act to amend the Criminal Procedure 13 Law. 14 ACTING PRESIDENT LACK: Last 15 section. 16 THE SECRETARY: Section 2. This 17 act shall take effect immediately. 18 ACTING PRESIDENT LACK: Call the 19 roll. 20 (The Secretary called the roll. ) 21 THE SECRETARY: Ayes 49, nays 22 one, Senator Gold recorded in the negative. 23 ACTING PRESIDENT LACK: The bill 1 is passed. 2 THE SECRETARY: Calendar Number 3 155, by Senator Mega, Senate Bill Number 2157, 4 an act to amend the Penal Law. 5 ACTING PRESIDENT LACK: Last 6 section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 ACTING PRESIDENT LACK: Call the 10 roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Ayes 50. 13 ACTING PRESIDENT LACK: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 156, by Senator Volker, Senate Bill Number 2173, 17 an act to amend the Penal Law. 18 ACTING PRESIDENT LACK: Last 19 section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 ACTING PRESIDENT LACK: Call the 23 roll. 1 (The Secretary called the roll. ) 2 THE SECRETARY: Ayes 50. 3 ACTING PRESIDENT LACK: The bill 4 is passed. 5 THE SECRETARY: Calendar Number 6 157, by Senator Johnson, Senate Bill Number 7 661. 8 SENATOR GOLD: Lay aside. 9 ACTING PRESIDENT LACK: Lay the 10 bill aside. 11 THE SECRETARY: Calendar Number 12 158, by Senator Johnson, Senate Bill Number 783, 13 Environmental Conservation Law. 14 ACTING PRESIDENT LACK: Last 15 section. 16 SENATOR GOLD: Lay it aside, 17 please. 18 ACTING PRESIDENT LACK: Lay the 19 bill aside. 20 THE SECRETARY: Calendar Number 21 159, by Senator Stafford, Senate Bill Number 22 955, Environmental Conservation Law. 23 ACTING PRESIDENT LACK: Last 1 section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT LACK: Call the 5 roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 51. 8 ACTING PRESIDENT LACK: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 160, by Senator Johnson, Senate Bill Number 12 1303, Environmental Conservation Law. 13 ACTING PRESIDENT LACK: Last 14 section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT LACK: Call the 18 roll. 19 (The Secretary called the roll. ) 20 THE SECRETARY: Ayes 51. 21 ACTING PRESIDENT LACK: The bill 22 is passed. 23 THE SECRETARY: 161, by Senator 1 Johnson, Senate Bill Number 1326, Environmental 2 Conservation Law. 3 ACTING PRESIDENT LACK: Last 4 section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT LACK: Call the 8 roll. 9 (The Secretary called the roll. ) 10 THE SECRETARY: Ayes 51. 11 ACTING PRESIDENT LACK: The bill 12 is passed. 13 THE SECRETARY: 162, by Senator 14 Johnson, Senate Bill Number 1795, Environmental 15 Conservation Law. 16 ACTING PRESIDENT LACK: Last 17 section. 18 THE SECRETARY: Section 2. This 19 act shall take effect immediately. 20 ACTING PRESIDENT LACK: Call the 21 roll. 22 (The Secretary called the roll. ) 23 THE SECRETARY: Ayes 51. 1 ACTING PRESIDENT LACK: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 165, by Senator Maltese, Senate Bill Number 5 2114. 6 SENATOR GOLD: Lay that aside. 7 ACTING PRESIDENT LACK: Lay the 8 bill aside. 9 THE SECRETARY: Calendar Number 10 166, by Senator Holland, Senate Bill Number 34, 11 authorize the Broad Acres Golf Company, 12 Incorporated, to have a right of first refusal. 13 ACTING PRESIDENT LACK: Last 14 section. 15 SENATOR SMITH: Lay the bill - 16 lay that bill aside. 17 ACTING PRESIDENT LACK: Lay the 18 bill aside, please. 19 THE SECRETARY: Calendar Number 20 167, by Senator Farley, Senate Bill Number 372, 21 an act to amend the Alcoholic Beverage Control 22 Law. 23 ACTING PRESIDENT LACK: Last 1 section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT LACK: Call the 5 roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 51. 8 ACTING PRESIDENT LACK: The bill 9 is passed. 10 168. 11 THE SECRETARY: Calendar Number 12 168, by Senator Stafford, Senate Bill Number 13 441, an act to amend the Tax Law. 14 ACTING PRESIDENT LACK: Local 15 fiscal impact note at the desk. Last section, 16 please. 17 THE SECRETARY: Section 2. This 18 act shall take effect immediately. 19 ACTING PRESIDENT LACK: Call the 20 roll. 21 (The Secretary called the roll. ) 22 THE SECRETARY: Ayes 51. 23 ACTING PRESIDENT LACK: The bill 1 is passed. 2 THE SECRETARY: Calendar Number 3 171, by Senator Spano, Senate Bill Number 1533, 4 an act to amend the Penal Law. 5 ACTING PRESIDENT LACK: Last - 6 last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect immediately. 9 ACTING PRESIDENT LACK: Call the 10 roll. 11 (The Secretary called the roll. ) 12 THE SECRETARY: Ayes 52. 13 ACTING PRESIDENT LACK: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 176, by Senator Hannon. 17 SENATOR GOLD: Lay aside. 18 ACTING PRESIDENT LACK: Lay it 19 aside. 20 THE SECRETARY: Calendar Number 21 177, by Senator Hannon. 22 SENATOR GOLD: Lay it aside, 23 please. 1 ACTING PRESIDENT LACK: Laid 2 aside. 3 Senator Present, that completes 4 the non-controversial calendar. 5 SENATOR PRESENT: Mr. President, 6 let's take up the controversial calendar, 7 please. 8 ACTING PRESIDENT LACK: 9 Controversial calendar, Secretary will read. 10 THE SECRETARY: On page 8, 11 Calendar Number 157, by Senator Johnson, Senate 12 Bill Number 661, Environmental Conservation Law, 13 in relation to state employee use of electric 14 vehicles. 15 SENATOR GOLD: Can we have a 16 quick explanation. 17 ACTING PRESIDENT LACK: Senator 18 Johnson, Senator Gold has requested a quick 19 explanation. 20 SENATOR GOLD: No, never mind. 21 Last section. 22 ACTING PRESIDENT LACK: Last 23 section. Thank you, Senator Johnson. That was 1 pretty quick. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT LACK: Call the 5 roll. 6 (The Secretary called the roll. ) 7 THE SECRETARY: Ayes 53. 8 ACTING PRESIDENT LACK: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 158, by Senator Johnson, Senate Bill Number 783, 12 Environmental Conservation Law, in relation to 13 state employee vehicle efficiency. 14 SENATOR GOLD: Explanation. 15 ACTING PRESIDENT LACK: Senator 16 Johnson, once again an explanation requested by 17 Senator Gold. 18 SENATOR JOHNSON: Mr. President, 19 this -- this bill would help to advance the 20 objective of the federal Clean Air Act, in which 21 employers of a hundred or more have to put in 22 place employer trip reduction programs. 23 This would provide the same thing 1 for New York State except that they would have 2 to begin this program and put in place where 3 there's 50 or more employees in their trip 4 reduction program. 5 SENATOR GOLD: Senator yield to a 6 question? 7 ACTING PRESIDENT LACK: Senator, 8 will you yield? 9 SENATOR JOHNSON: Yes. 10 ACTING PRESIDENT LACK: Senator 11 Gold. 12 SENATOR GOLD: Senator, what I 13 don't understand, we're talking about the use of 14 a vehicle -- God bless you. Are these private 15 vehicles of employees we're talking about? 16 SENATOR JOHNSON: That's correct. 17 SENATOR GOLD: And these are 18 vehicles that the private individuals use to get 19 to work? 20 SENATOR JOHNSON: That's correct. 21 SENATOR GOLD: Now, the word 22 "required" is used, isn't it? How do you -- I 23 mean I don't understand what they're supposed to 1 really do in this situation. If you have a 2 hundred employees and they live in various 3 directions and they all drive to work, what is 4 supposed to happen? The agency, is it supposed 5 to put out lists of who is to pick up who or 6 drive together; how does it work? 7 SENATOR JOHNSON: Well, that is 8 the -- well, there are, of course, federal 9 regulations going into effect for all private 10 enterprises requiring them to do this same 11 thing, trip reduction, of roughly 25 percent. 12 SENATOR GOLD: Well, what do they 13 do, I mean? I'm just trying to find out. 14 SENATOR JOHNSON: Well, there are 15 various techniques that could take place. For 16 example, you could do car pooling. People could 17 use public transportation. The employer could 18 have a van picking up ten people at a time and 19 satisfy the requirement, various methods by 20 which to achieve this reduction in accordance - 21 SENATOR GOLD: Will the Senator 22 yield to a question? 23 SENATOR JOHNSON: Yes. 1 SENATOR GOLD: What I'm just 2 curious about is, I mean I'm an employee and, 3 for whatever reason, I -- I drive to work. Can 4 the employer take away my job if I don't carpool 5 or use a van or public transportation? 6 SENATOR JOHNSON: Well, that's 7 very interesting. That's a question we have to 8 ask as well about the public program. Do we 9 fire you if you refuse to use a carpool? I don't 10 think all of the details have been worked out 11 yet, and the reason we thought New York State 12 ought to take a lead in this is that we could 13 help to work out the details of these 14 programmatic changes that would have to take 15 place in order to achieve the objectives of the 16 federal Clean Air Act. 17 SENATOR GOLD: Will the Senator 18 yield to one more question? 19 SENATOR JOHNSON: Yes. 20 SENATOR GOLD: Is this bill the 21 implementation of a mandate? 22 SENATOR JOHNSON: Well, there's a 23 federal mandate that's coming down on all 1 employers of a hundred or more. What we're 2 saying is the state should take the lead in 3 trying to implement a program like this and work 4 out the kinks before it's required for all the 5 general employers in the state. 6 SENATOR GOLD: Senator, when is 7 it required; as of what date will it be required 8 of private employers? 9 SENATOR JOHNSON: 1996, and we're 10 moving this up one year. We're saying the state 11 should do it by 1995. The general employers in 12 the state have to do it by 1996. The state 13 would gain valuable experience during that year 14 in determining how this program could be 15 implemented. 16 SENATOR GOLD: Will the Senator 17 yield to one more question? 18 Senator, have any other states 19 passed similar legislation? 20 SENATOR JOHNSON: I'm not aware 21 of it, Senator. 22 SENATOR GOLD: Senator 23 Oppenheimer. 1 ACTING PRESIDENT LACK: Senator 2 Oppenheimer. 3 SENATOR OPPENHEIMER: I would 4 like to speak in favor of the bill and answer a 5 question Senator Gold raised. 6 There are various techniques that 7 are being suggested to decrease the amount of 8 vehicle trips to an office park, an office 9 building, and most of them are carrots, but some 10 of them are sticks, and they -- they include 11 things like providing for those people who drive 12 more than one in a car to have parking spaces 13 close in to the office building, whereas if you 14 drive by yourself you may be a mile away down 15 the road. 16 There are just a lot of different 17 techniques that are being looked at, including 18 jitney services and, at any rate, this is 19 definitely the direction we have to take. We 20 have to cut down the single drivers in cars 21 that's a plague to New York City and its 22 environs and absolutely essential if we're going 23 to try and comply with the Clean Air Act, and 1 the Environmental Planning Lobby has given this 2 two trees, so that's very high on their priority 3 list, not quite three trees, but two trees. 4 So I would recommend for our - 5 our health as well as the health of this area of 6 New York City and surrounding environment, as 7 well as the health of the planet, that we 8 approve this. 9 ACTING PRESIDENT LACK: Last 10 section. 11 THE SECRETARY: Section 2. This 12 act shall take effect immediately. 13 ACTING PRESIDENT LACK: Call the 14 roll. 15 (The Secretary called the roll. ) 16 THE SECRETARY: Those recorded in 17 the negative on Calendar Number 158 are Senators 18 Kuhl, Paterson and Smith. Ayes 51, nays 3. 19 ACTING PRESIDENT LACK: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 165, by Senator Maltese, Senate Bill Number 23 2114, an act to repeal section 114-a of the 1 Correction Law. 2 ACTING PRESIDENT LACK: Senator 3 Maltese, Senator Hoffmann has requested an 4 explanation. 5 SENATOR MALTESE: Mr. President, 6 section 114-a of the Correction Law requires 7 correctional facilities superintendents to keep 8 daily facility records regarding rule 9 infractions by employees, punishments inflicted 10 upon inmates, and inmate complaints regarding 11 food, clothing or cruel and unusual punishments. 12 Section 114-a would be repealed to eliminate 13 duplication of facility record-keeping 14 requirements. 15 This was a departmental request 16 that we acceded to. Their information to us 17 indicates that this provision, which was orig 18 inally enacted in 1929, well before computers, 19 was intended for specific use by the 20 Commissioner of Correctional Services, and they 21 indicate that all type -- all the types of 22 incidents required to be recorded in this daily 23 record are recorded, number one, via the inmate 1 disciplinary process, the inmate grievance 2 process, and the unusual incident file and are 3 accessible by computer in those official 4 department records. 5 SENATOR HOFFMANN: Would Senator 6 Maltese yield for a question? 7 ACTING PRESIDENT LACK: Senator, 8 will you yield? 9 Senator. 10 SENATOR HOFFMANN: Senator 11 Maltese, was there any change to this bill from 12 the form that we saw it in when it came before 13 the Crime and Corrections Committee? 14 SENATOR MALTESE: No, there was 15 not, Senator. 16 SENATOR HOFFMANN: Thank you, 17 Senator Maltese. On the bill, Mr. President. 18 ACTING PRESIDENT LACK: On the 19 bill. 20 SENATOR HOFFMANN: I'm disturbed 21 by this apparent desire by the Department of 22 Corrections to eliminate some of its record 23 keeping. I don't think that it's cumbersome at 1 all for the Department of Corrections to 2 maintain a daily log. This has been standard 3 operating procedure and should continue to be. 4 The suggestion that the same in 5 formation is already available under separate 6 incident reports evades the important fact that 7 it would require a very complicated search and 8 cross-reference to determine what incidents, or 9 what pattern of incidents occurred under a 10 specific watch at a specific institution. 11 In the computer age, in which we 12 find ourselves it should be relatively simple to 13 adjust the computer technology to afford a short 14 title, if you will, or a short version of the 15 daily log to be automatically indexed through 16 the incidents report keeping. Rather than 17 eliminating the daily log, there should be a way 18 to simply allow the duplication of that log to 19 take place in the normal course of reporting the 20 other event, but it would not be in the interest 21 of accountability for this legislative body to 22 pass a measure that would allow the elimination 23 of daily logs as we now know them. 1 I'll vote no. 2 ACTING PRESIDENT LACK: Senator 3 Waldon. 4 SENATOR WALDON: Would the 5 Senator yield to a question or two? 6 ACTING PRESIDENT LACK: Senator, 7 will you yield? 8 SENATOR MALTESE: Yes. 9 ACTING PRESIDENT LACK: Senator. 10 SENATOR WALDON: Mr. President, 11 Senator Maltese, this record -- this daily log 12 record, is it handwritten? 13 SENATOR MALTESE: Is it 14 handwritten? 15 SENATOR WALDON: Yes. 16 SENATOR MALTESE: My 17 understanding is that it's fed into a computer. 18 There was a representative of the Department 19 present at the committee meeting at which 20 Senator Hoffmann was present, and he seemed to 21 indicate that there was a handwritten record in 22 addition to the computer record. 23 SENATOR WALDON: But the daily 1 log, by virtue of definition, the daily log, as 2 is a police blotter, as is a log in the 3 correctional facility, is it not handwritten? 4 SENATOR MALTESE: Yes, by 5 definition it would be handwritten. 6 SENATOR WALDON: And then - 7 SENATOR MALTESE: Although my 8 understanding, as you probably know better than 9 I, Senator, is that, in addition it is fed into 10 the computer as a Department record. 11 SENATOR WALDON: Yes, Senator, I 12 understand that. Mr. President, if I may 13 continue. 14 ACTING PRESIDENT LACK: Senator. 15 SENATOR WALDON: Senator, the 16 recording of these incidents, as in normal 17 business records and when handwritten, is it at 18 your -- is it your understanding or do you have 19 information which indicates differently that as 20 the incident occurs, it is written into the log, 21 then there's an extrapolation from the log and 22 that is what is -- that information is then 23 placed on the computer? 1 SENATOR MALTESE: That's my 2 understanding, Senator. 3 SENATOR WALDON: Would it be also 4 your understanding that the log itself could not 5 be easily erased or somehow changed, as could 6 the computer record that is supplemental to the 7 log? 8 SENATOR MALTESE: Well, I guess 9 it couldn't be any more easily replaced than any 10 written record or as easily changed as any 11 written record that -- I guess it depends, 12 Senator, on whether it's in a permanent binder 13 or whether it's in some looseleaf type of 14 arrangement, and I couldn't answer your question 15 as to which it's in. 16 I imagine it's in a permanent 17 binder but I don't know that to be a fact. 18 SENATOR WALDON: Thank you very 19 much, Senator. 20 Mr. President, if I may, on the 21 bill. 22 ACTING PRESIDENT LACK: Senator 23 on the bill. 1 SENATOR WALDON: It is my 2 understanding that these books are similar to 3 police blotters which I have some awareness of, 4 and they are permanent. We don't just tear out 5 the sheets of paper. 6 The overwhelming majority of the 7 people who work for the Department of 8 Correctional Services, both on the state level 9 and the city level, are outstanding human 10 beings, good citizens who are there to do their 11 job in the most professional manner. However, 12 there have been instances throughout the last 13 years that I've been up here, where people have 14 been abused or at least alleged that they were 15 abused by correctional personnel, and it is my 16 feeling that once something is handwritten into 17 a log, it is much more difficult to eliminate, 18 to erase, to alter, and so that I can see the 19 protection need for not only the correction 20 officers, but certainly the inmates. If the 21 record is there, it cannot be destroyed. The 22 officer's protected; the inmate is protected. 23 Based on that alone, I'll have to 1 vote in the negative on this bill. 2 ACTING PRESIDENT LACK: Senator 3 Dollinger. 4 SENATOR DOLLINGER: Mr. 5 President, I just rise to echo the sentiments 6 expressed by my colleague, Senator Waldon. 7 I have represented at court 8 request on a pro bono basis inmates who have 9 been -- who have alleged civil rights violations 10 against either in this case -- in the cases that 11 I've represented them, against inmates and 12 correction officers in the state of New York. 13 I litigated both of those cases 14 and, in large measure, the only way I could 15 track what had gone on in the facility was 16 through the use of the daily log system in the 17 Special Housing Unit and other places in the 18 correctional facilities. 19 I think Senator Waldon's point is 20 very good, well taken, because the documents 21 proved to be an asset both to the corrections 22 officer in detailing their conduct inside the 23 facility, and they were an asset to the 1 plaintiff or to the potential claimant against 2 the state, if they believed their rights had 3 been violated because they would have a method 4 to be able to trace what happened in the 5 facility or what happened in the Special Housing 6 Unit or in the correction facility itself. 7 So my experience suggests and, 8 frankly, I have poured through these little 9 books many, many hours in representing on a pro 10 bono basis in federal court claimants in these 11 cases, and I think they're valuable. I think 12 that those handwritten notes can be important in 13 both prosecution and defense, so that we make 14 sure that our criminal justice system is exactly 15 that, a place of justice, and I will concur in 16 voting with my colleague in the negative. 17 ACTING PRESIDENT LACK: Senator 18 Gold. 19 SENATOR GOLD: Will Senator 20 Maltese yield to a question? 21 SENATOR MALTESE: Yes. 22 ACTING PRESIDENT LACK: Will you 23 yield? Senator. 1 SENATOR GOLD: Senator, I 2 understand that this bill was given to you by 3 the Department and you're trying to help the 4 Department. But the term "duplication" keeps 5 coming up. 6 I understand that, under the 7 present procedures, if there was an infraction 8 by an employee or a punishment inflicted on an 9 inmate, under the existing system, that gets put 10 in the inmate's file or in the employee's file 11 so there is a record. 12 But the argument that I'm hearing 13 from the three Senators who already spoke is 14 that a different kind of file is necessary to 15 protect some rights. Now, if we eliminated this 16 file that you're talking about, would there be 17 any file that is a true duplicate; in other 18 words, anything that the Department would be 19 keeping which could track chronologically what 20 happened on any particular day? 21 SENATOR MALTESE: My 22 understanding, Senator, and as you've correctly 23 pointed out, the information and the bill was 1 given to us as a departmental bill. They 2 indicated that the inmate grievance procedure is 3 a separate and distinct procedure with a 4 separate writing, and that file would still be 5 there. 6 The unusual incident file is an 7 additional file, which it would also have a 8 written copy. 9 SENATOR GOLD: Will the Senator 10 yield to a question? 11 SENATOR MALTESE: Yes. 12 ACTING PRESIDENT LACK: Senator 13 Maltese will yield. 14 SENATOR GOLD: Senator, let me 15 put it by way of example. A policeman in the 16 city of New York says that he responded to a 17 certain address because there were gunshots or 18 whatever. You look at the policeman's book and 19 you find that there's a marking, but you also 20 find that there's a marking before it and a 21 marking before that which starts to explain the 22 routing and what that officer did, and it may or 23 may not turn out that he told the truth. I know 1 of one specific case where the officer did not 2 tell the truth and his own book bore that out. 3 Now, if that book had been 4 destroyed which gave a chronological listing of 5 what happened that day, all we would know is 6 that, yes, the officer reported that at 11:00 7 o'clock there was a shot, and he went some 8 place. 9 Now, by way of analogy, if we 10 don't have a chronological record in the 11 Corrections Departments, we wouldn't know, for 12 example, from what you are saying that at a 13 certain time there was an incident with a 14 certain inmate that took place and someone was 15 involved. But it might be important for the 16 Department itself or maybe the Commission on 17 Correction, which we all know is a separate 18 agency, or a private lawyer, to know that maybe 19 an hour before that, the same guard had an 20 incident with a different inmate or that same 21 guard had five incidents, and you wouldn't know 22 that unless you had a chronological report of 23 what happened on that specific day. 1 You'd have five incidents 2 reported under five inmates, but how do you get 3 that information and tie it up the same way? 4 That, I think, is the concern of Senator Waldon 5 and Senator Hoffmann and Senator Dollinger, and 6 I'm sure you're concerned with it also. 7 Would we -- would there be any 8 kind of a duplication of that record or are we 9 correct in our assumption that we would be 10 destroying that chronological record? 11 SENATOR MALTESE: Mr. President, 12 in view of the objections and the concerns 13 expressed by my colleagues in the Minority, I 14 would respectfully lay aside this bill so that I 15 could have a representative of the Department 16 advise me on some of these facts that 17 unfortunately were not done up until today. 18 SENATOR GOLD: Mr. President, let 19 the record reflect that Senator Maltese is still 20 a gentleman. Thank you. 21 ACTING PRESIDENT LACK: The 22 record will so reflect. The bill is laid 23 aside. 1 Regular order. 2 THE SECRETARY: Calendar Number 3 166, by Senator Holland, Senate Bill Number 34, 4 authorize the Broad Acres Golf Club, 5 Incorporated to have the right of first refusal 6 on the lease of lands. 7 SENATOR GOLD: Explanation, 8 please. 9 ACTING PRESIDENT LACK: Senator 10 Holland, Senator Gold has requested an 11 explanation. 12 SENATOR HOLLAND: Mr. President, 13 Broad Acres Golf Club is a golf club 14 approximately 50 years old on the Rockland 15 Psychiatric - 16 SENATOR GOLD: Pardon me. 17 SENATOR HOLLAND: Mr. President, 18 to start over: Broad Acres Golf Course is a 19 nine-acre golf course on the Rockland 20 Psychiatric Center hospital grounds and is 21 approximately 50 years old. 22 It was built, I believe, by the 23 German and Italian prisoners who were brought 1 over here during the second World War and were 2 kept at Camp Shanks. Nonetheless, for the last 3 seven years, there's been a not-for-profit 4 organization that has operated Broad Acres. 5 They have spent a lot of money. They have paid 6 their own dues. They have improved the golf 7 course, and they are leasing it year by year 8 from OGS. 9 OGS, at this point, says they 10 want to put the -- a five-year lease out to open 11 up the bidding. All this bill says is, can the 12 non-profit organization that has improved the 13 golf course and operated the golf course for the 14 last seven years have the right of first 15 refusal. That means no cost to the state. They 16 will pay whatever the high bid is on the lease. 17 SENATOR GOLD: Anything else? 18 ACTING PRESIDENT LACK: Last 19 section. Senator Gold. 20 SENATOR GOLD: Senator Kuhl, do 21 we have a problem? Senator Onorato, do we have 22 a problem? 23 SENATOR ONORATO: It's a good 1 bill. 2 ACTING PRESIDENT LACK: Last 3 section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 ACTING PRESIDENT LACK: Call the 7 roll. 8 (The Secretary called the roll. ) 9 THE SECRETARY: Ayes 55. 10 ACTING PRESIDENT LACK: The bill 11 is passed. 12 THE SECRETARY: Calendar Number 13 176, by Senator Hannon, Senate Bill Number 277, 14 an act to amend the Administrative Code of the 15 city of New York. 16 SENATOR PRESENT: Lay it aside. 17 SENATOR GOLD: Next week? 18 ACTING PRESIDENT LACK: Laid 19 aside. 20 SENATOR GOLD: Lay it aside. 21 THE SECRETARY: Calendar Number 22 177, by Senator Hannon, Senate Bill Number 644, 23 Emergency Tenant Protection Act. 1 ACTING PRESIDENT LACK: Last 2 section. 3 SENATOR GOLD: No, no. 4 Explanation. Give me one second. Lay it aside 5 for the day. Lay it aside. It's being laid 6 aside, I believe. 7 ACTING PRESIDENT LACK: Lay it 8 aside. 9 Senator Present, that completes 10 the Calendar. 11 SENATOR GOLD: Mr. President. 12 ACTING PRESIDENT LACK: Senator 13 Gold. 14 SENATOR GOLD: Mr. President, if 15 that's the end of the Calendar, I believe that 16 Senator Dollinger has a motion which is now in 17 order, and I'd like to go to that order of 18 business and yield to Senator Dollinger. 19 ACTING PRESIDENT LACK: Motions 20 to discharge and to amend the rules. 21 Senator Dollinger. 22 SENATOR DOLLINGER: Mr. 23 President, I have a motion to discharge from the 1 Finance Committee a resolution that I've 2 sponsored. I believe it should be passed up to 3 the -- to the President. 4 I speak on the motion, Mr. 5 President? 6 ACTING PRESIDENT LACK: You'd 7 like the Secretary to read the title? 8 SENATOR DOLLINGER: Yes, please. 9 ACTING PRESIDENT LACK: Secretary 10 will read the title of the motion. 11 THE SECRETARY: By Senator 12 Dollinger, in relation to Legislative Resolution 13 Number 524, directing the Secretary of the 14 Senate to comply with the February 18th, 1993 15 order and decision of the New York State Supreme 16 Court, which will make public certain 17 information regarding Senate mailings. 18 SENATOR DOLLINGER: I move that 19 resolution. Is a motion in order at this time? 20 ACTING PRESIDENT LACK: On the 21 resolution. Do you wish to speak on the motion? 22 SENATOR DOLLINGER: I'll speak on 23 the motion. 1 Mr. President, I rise today 2 because as a newcomer to this body, I believe 3 that the issue that is poised for our 4 consideration by that resolution is a critical 5 one to the issue of governing this state. 6 The issue, it seems to me, is a 7 very simple one: Are we going to disclose to the 8 public what we do in the mailings that are 9 financed by that very same public? 10 The resolution stems from a very 11 simple principle, and that is the disclosure and 12 open government is in the best interests of 13 everyone. The more people know about our 14 government, the more they'll understand and, 15 frankly, the more public confidence in us they 16 will have. 17 There's an old principle that was 18 heard at the time of the Revolutionary 19 government that there would be no taxation 20 without representation. I'd simply offer to all 21 my colleagues a minor variation of all that 22 which is a rule in the 1990s and I hope for the 23 rest of our democratic future, and that is there 1 should be no taxation without disclosure; and I 2 offer two or three simple reasons for supporting 3 this bill, or this resolution and the motion 4 that accompanies it. 5 First of all, I'd ask that the 22 6 members of this body who were here 17 or 15 7 years ago, when the Freedom of Information Law 8 was enacted, I'd simply ask you to reaffirm that 9 vote. It passed this body unanimously. It 10 passed the Assembly. Many of you were members 11 of the Senate and Assembly at the time. 12 Judge Canfield, in his opinion in 13 this case in the Supreme Court, simply quoted 14 the declaration, the legislative declaration at 15 the front of that act, and it's one that 22 16 members of this body agreed with. 17 The other thing, I think, that 18 passing this resolution will do is, it will 19 allow us to continue to do what we do well. 20 SENATOR LEICHTER: Mr. 21 President. 22 ACTING PRESIDENT LACK: Senator 23 Leichter, why do you rise? 1 SENATOR LEICHTER: Yeah. Would 2 Senator Dollinger yield for a question? 3 SENATOR DOLLINGER: Sure. 4 ACTING PRESIDENT LACK: Senator 5 will yield. Senator Leichter. 6 SENATOR LEICHTER: Senator, could 7 you explain and set forth to us exactly what 8 your resolution does and the context, what 9 brought -- what brought you to make or bring 10 this resolution before us? 11 SENATOR DOLLINGER: Exactly, 12 Senator. I perhaps should have done that. I'm 13 assuming familiarity with my colleagues. 14 As most of you, I'm sure, know, 15 there was a lawsuit brought by a man named 16 Siris, who was running in a campaign for the New 17 York State Senate. He had filed a Freedom of 18 Information request with this body, with the 19 Secretary of this body, asking for a disclosure 20 of mailings undertaken by his incumbent opponent 21 during the course of the -- I believe the year 22 prior to the date of the election. He filed 23 that request with this body. It was denied. He 1 filed an appeal with this body under the rules 2 of the Temporary President, and that appeal was 3 also denied. 4 In the wake of the denial of both 5 of those appeals -- both of the request and the 6 appeal, he commenced a lawsuit in the New York 7 State Supreme Court. That lawsuit was decided, 8 I assume, and I don't know this for actual fact, 9 but I assume on motion for summary judgment and 10 judgment was granted to Mr. Siris to require 11 this body to disclose to him the mailings that 12 he had requested in his initial Freedom of 13 Information Law request. 14 When I became aware of that court 15 decision, and it was discussed, it was my 16 conclusion that this body should choose to abide 17 by that and forego an appeal, that we should not 18 be in the position of taking the taxpayers' 19 money to finance an appeal when the purpose of 20 the appeal was to simply keep secret the issue 21 of what this body was spending the taxpayers' 22 monies to promote in terms of mailings to our 23 constituents. 1 That is the motion that is the 2 basis behind the resolution that I submitted to 3 this body. 4 SENATOR DALY: Mr. President. 5 ACTING PRESIDENT LACK: Senator 6 Daly, why do you rise? 7 SENATOR DALY: Would the Senator 8 yield to a question? 9 ACTING PRESIDENT LACK: Senator, 10 will you yield? 11 SENATOR DOLLINGER: I will to my 12 colleague. 13 ACTING PRESIDENT LACK: Senator 14 Daly. 15 SENATOR DALY: Mr. President, 16 would the Senator answer the following question? 17 According to the resolution filed, the court has 18 determined that the Secretary of the Senate has 19 acted in an arbitrary and capricious *** 20 contrary to the law, and abused his discretion. 21 Does the Senator mean to tell us 22 that the Secretary of the Senate, who's been 23 accused of doing something contrary to the 1 law, should be denied the right of appeal? 2 SENATOR DOLLINGER: I think the 3 answer to that question is that, based on Judge 4 Canfield's opinion, he had -- in fact, he had 5 violated the law by failing to abide by the 6 wishes of this body as expressed 15 years ago in 7 the Freedom of Information Act. 8 I come here today to simply ask 9 the Secretary of the Senate and all of my 10 colleagues to abide by the same spirit of that 11 Act. 12 SENATOR DALY: Mr. President, 13 will the Senator answer the question? 14 ACTING PRESIDENT LACK: Senator 15 Daly. 16 SENATOR DALY: Should the 17 Secretary of the Senate be denied the right to 18 appeal if he's been accused of doing something 19 contrary to the law? 20 SENATOR DOLLINGER: And the 21 answer to that question, Mr. President, and I'll 22 cite it again, is this body employs the 23 Secretary of the Senate. We can decide whether 1 this body will abide by the terms of the 2 legislative declaration that unanimously passed 3 this Senate 15 years ago. We can direct our - 4 the Secretary of the Senate as to whether or not 5 he should comply with the law as we see it. 6 That's the power we have as lawmakers. 7 SENATOR DALY: Mr. President, 8 would he yield to one more question? 9 ACTING PRESIDENT LACK: Senator, 10 will you yield to one more question? 11 SENATOR DOLLINGER: Certainly. 12 SENATOR DALY: According to the 13 Constitution, we've established - 14 ACTING PRESIDENT LACK: Senator 15 Daly. 16 SENATOR DALY: -- an Appellate 17 Division to hear appeals. We have a case where 18 a person, representative of the Senate, has been 19 charged with doing something contrary to the 20 law. How dare anyone deny that person the right 21 to appeal? 22 Mr. President, I'm not a lawyer; 23 my honored colleague is, and he still hasn't 1 answered my question. He's walking around the 2 question; he must have majored in sophistry. 3 Answer the question, sir: Should 4 -- should we deny that man the right to 5 appeal? It is the Secretary of the Senate. 6 SENATOR GALIBER: Point of order. 7 SENATOR DOLLINGER: Mr. President, 8 can I answer the question? I'll even be more 9 direct than I was. 10 ACTING PRESIDENT LACK: Senator 11 Dollinger, excuse me. Senator Galiber, you have 12 raised a point of order. Yes, Senator. 13 SENATOR GALIBER: Mr. President, 14 I think on two occasions, the question was 15 answered, and it would seem to me that my 16 colleague and good friend is attempting to 17 solicit what he calls an answer. 18 The question has been asked and 19 it has been answered. That's my -- my point of 20 order. 21 ACTING PRESIDENT LACK: Thank 22 you, Senator Galiber. 23 Senator Daly, Senator Dollinger 1 has the floor. 2 SENATOR DALY: Yes, sir. 3 ACTING PRESIDENT LACK: Senator 4 Dollinger. 5 SENATOR DOLLINGER: The -- the 6 reason -- other reason why I think -- two other 7 reasons actually why I think we should abide by 8 this resolution and pass it, is I point to my 9 colleague, Senator Sheffer. 10 I sat at a hearing on minor 11 league baseball in which we brought in people 12 from all over New York State, asked them all 13 kinds of questions about the future of minor 14 league baseball, a very, very well conducted 15 hearing. We got tons of information that we 16 need to be able to make effective decisions. I 17 dare say that we found out more about minor 18 league baseball than we know about the mailings 19 from this very body that are financed by 20 taxpayers. 21 We're doing good things in other 22 areas. We're investigating and finding out 23 information from third parties, but we can't 1 seem to find it out about ourselves, and we're 2 not prepared to tell the public what we're 3 doing. It seems to me that, when we send people 4 mail, when we offer mail to them, when we use 5 their money to send the mail to them, regardless 6 of the message it conveys, we should also be 7 able to tell them how much it costs and how 8 frequently they have to pay for it. 9 I guess I'm amazed that, in this 10 whole process, as we've looked at the process of 11 public disclosure of mailings, one of the 12 questions I asked, is there any more secret 13 operating governments in the world, at least the 14 United States as we know it, that doesn't 15 disclose its information on how it spends its 16 taxpayers' money, and the answer is there is. 17 It's called the Central Intelligence Agency. 18 It's the truly secret branch of the federal 19 government. 20 I dare say, gentlemen, that 21 without the kind of public information about 22 mailings, we're operating the second most secret 23 government to the tune of $180 million. 1 Lastly, I offer one other 2 thought. I'm new to this body. I'm new to the 3 gentlemen on the other side of the aisle. I'm 4 just getting to know some of you, but I've been 5 impressed with conviction and I've been 6 impressed with your commitment: Senator Volker 7 during the death penalty debate, obviously an 8 important issue for him, obviously one that he 9 has strong personal opinions about; Senator 10 Saland, in his comments on the death penalty, 11 strong conviction for the people of this state, 12 as we deal with the crime problem. I mentioned 13 Senator Sheffer and his work in the minor league 14 baseball. I've worked with my colleague, 15 Senator Daly, on the lake shore issue, as we try 16 to deal with other problems. I think -- and 17 I've worked with, add one other, Senator Mega in 18 his handling of the Judiciary Committee as we 19 deal with problems of creating new laws and 20 their effect on our judicial system. 21 I see all of this good will, and 22 yet I see myself standing up today to criticize 23 my colleagues and to criticize a practice that 1 has been too long a part of the way we've 2 operated. I think that the people of good will 3 on all sides of this chamber can come together 4 and deal with the critical problems that we face 5 of crime and drugs and all those other things 6 that our constituents are demanding that we do, 7 and we can get over the silliness of whether or 8 not we're going to disclose the cost of our 9 mail. 10 It seems to me that we owe it to 11 this state to get beyond this issue, to put it 12 behind you. The last thing anyone needs is 13 people from this side of the aisle carping about 14 your failure to disclose. It's my hope that 15 this resolution will pass, that we will instruct 16 our employee, the Secretary of the Senate, who 17 is employed by all of us, and we will instruct 18 him to comply with the law as we believe it 19 should be, and that we will disclose to the 20 people of this state how we spend their money. 21 It's the most important thing we can do. 22 I'd ask all of you to join hands 23 across that aisle. Let's restore people's 1 confidence in government. Let's give them the 2 confidence we're spending their money properly 3 and let's tell them, by disclosing the cost of 4 mail, tell them that the message is that we 5 believe in disclosure, we believe that there 6 should be no taxation without disclosure, and 7 that we're prepared to get on to more serious 8 business of financing this state, attacking our 9 problems, and restoring people's confidence in 10 government. 11 ACTING PRESIDENT LACK: Senator 12 Volker. 13 SENATOR VOLKER: Mr. President. 14 Senator Dollinger, I was here 15 years ago. In 15 fact, just to recollect my memory, I talked to 16 the sponsor of the Freedom of Information 17 legislation, which was none other than Ralph 18 Marino. I believe, in fact, I was a co-sponsor, 19 it's a long time ago, but I think I was. 20 The ironic twist is that, 21 Senator, you're -- by the way this, is a reso 22 lution; it's not a bill. You're proposing a 23 resolution, and a motion to discharge of the 1 resolution, to the television people who this is 2 sort of aimed at to a certain extent. What that 3 means is that there's no bill here to do this. 4 This is just a resolution which tells the -- as 5 I understand it, would tell the Secretary of the 6 Senate that he should not attempt to uphold a 7 piece of legislation that we passed here, the 8 Freedom of Information Law, so many years ago. 9 Where you're wrong, Senator, is 10 this. Your resolution does not at all attempt 11 to uphold that act. In fact, it is totally in 12 contradistinction to it. Judge Canfield ignored 13 the legislation. In fact, the interesting thing 14 about it is, I spoke with Senator Marino about 15 this, and the reason that the exclusion was put 16 into the Assembly or into the Legislature, in 17 fact, the Senate was more inclined at the time 18 to be more forgiving. We were inclined at the 19 time to allow more latitude, but there was 20 opposition at the time from some people in the 21 Assembly who made a good point. They said, How 22 much do we disclose? How far do we go in 23 disclosing communications with our constituents? 1 You know, you're seizing on one 2 area, which is the area of cost and funding 3 which, by the way, is in the budget, but I don't 4 want to get into that. You're failing to 5 recognize something: Judge Canfield made a 6 decision. He said, based on the top part of the 7 bill, he said the intent, he ignored the bill 8 itself, which clearly says the Legislature is 9 excluded. 10 If you want to change that, 11 Senator - 12 ACTING PRESIDENT LACK: Excuse 13 me, Senator Volker. Senator Gold is 14 interrupting. Senator Gold. 15 SENATOR GOLD: Senator, would the 16 Senator yield to one question? 17 SENATOR VOLKER: Certainly. 18 ACTING PRESIDENT LACK: Senator, 19 will you yield? Senator Gold for your question. 20 SENATOR GOLD: Senator Volker, I 21 understand your argument except I'd like to ask 22 you a question. Isn't it a fact that Steve 23 Sloan, the Secretary of the Senate - 1 SENATOR VOLKER: M-m h-m-m. 2 SENATOR GOLD: -- is an employee 3 of the Senate? 4 SENATOR VOLKER: Right. 5 SENATOR GOLD: Meaning an 6 employee of all of us, specifically recommended 7 by the Majority, but he is our employee; isn't 8 that correct? 9 SENATOR VOLKER: That's correct. 10 SENATOR GOLD: All right. Well, 11 Senator, isn't it also a fact that in every 12 single litigation in this state the law provides 13 an appellate process, but in every single 14 litigation there isn't an appeal; it is up to 15 the litigants whether or not, in a particular 16 case, they want to appeal or whether they want 17 to accept the decision of the court, isn't that 18 a fact? 19 SENATOR VOLKER: That's a fact, 20 Senator. 21 SENATOR GOLD: All right. So 22 Senator, isn't it also a fact, and then I'll sit 23 down, that while this is a resolution, and if we 1 in a resolution, ask the Congress to do 2 something or ask any other party to do 3 something, that might have one effect, but in 4 this resolution, if we, as a Senate, voted to do 5 it, that we would have the capacity to have our 6 employee withdraw from this litigation and look 7 at the world and say, We are going to abide - 8 whatever the statute said, whatever the 9 resolution said, we choose as a body of 61 10 persons, to abide by the judge and open our 11 books? Isn't that our capacity? Can't we do 12 that? 13 SENATOR VOLKER: In other words, 14 what you're saying, Senator, is we should ignore 15 a statute passed by this Legislature many years 16 ago, passed by the other house, signed by the 17 Governor, which clearly says that Judge 18 Canfield's decision was out of line, clearly and 19 unequivocally? 20 SENATOR GOLD: No, Senator. 21 SENATOR VOLKER: Wait a minute, 22 Senator, I'm answering you. 23 SENATOR GOLD: You're right; go 1 ahead. 2 SENATOR VOLKER: Clearly says 3 it's out of line, and says that we should let a 4 judge make a decision which flies in the face of 5 what the sponsor of the bill understood the bill 6 to be, which the meaning of the bill is pretty 7 clear, and just say that we won't take an appeal 8 because somebody thinks that the law is wrong. 9 Senator, that is not what we are 10 elected here to do. What we are elected here to 11 do is make decisions. We made a decision with 12 the Freedom of Information legislation. If 13 Senator Dollinger wants to repeal that section 14 of the law, then he has every right to put in 15 legislation to do that and this body can make a 16 decision on whether we want to repeal that 17 section of the law or not. 18 But this is a resolution aimed 19 at, in my opinion, saying that a judge's 20 decision which flies in the face of legislation 21 that was passed by both houses, we should tell 22 the Secretary of the Senate, Don't appeal it; by 23 the way, an appeal which is going to be handled 1 by the Attorney General, which is not a cost to 2 the taxpayers as other actions that have been 3 done in this place have been at times when we 4 have upheld the right of the Legislature like, 5 if you remember, we upheld the Legislature here 6 some several years ago at a fairly substantial 7 cost, because a member of this body was attacked 8 from the outside, and both sides of this aisle 9 were willing to stand up at that time, because 10 we felt this body was being attacked; and, 11 Senator, I'm saying to you that I think this 12 legislation, this resolution, says forget what 13 this Legislature passed; forget the fact that 14 the judge ignored the law and don't appeal, and 15 I think that's completely wrong. 16 SENATOR GOLD: Mr. President. 17 ACTING PRESIDENT LACK: Senator 18 Gold. 19 SENATOR GOLD: Will the Senator 20 yield to a question? 21 SENATOR VOLKER: Certainly. 22 ACTING PRESIDENT LACK: Senator, 23 will you yield again to a question? Senator 1 Gold for your question. 2 SENATOR GOLD: Senator, we have 3 created laws which say that, if an individual 4 lends money to another individual, that if it's 5 not paid back, that individual can enforce that 6 debt. Wouldn't you agree with me that we have 7 no capacity as a legislature to put in a private 8 bill saying that Jones does not have to pay back 9 Smith a particular debt? Isn't that true? 10 SENATOR VOLKER: That's true. 11 SENATOR GOLD: All right. 12 Similarly, Senator, if somebody owes somebody a 13 debt, we have created by statute a statute of 14 limitations, which means that if a debt isn't 15 sued upon in a certain period of time, the 16 individual has a defense. Isn't it a fact that 17 the individual who is sued can waive the defense 18 and elect to pay the debt anyway because somehow 19 they feel morally they should pay that amount of 20 money; isn't that true? 21 SENATOR VOLKER: What you're 22 saying, Senator, is that even though we know and 23 are convinced that a piece of legislation we 1 pass has been unjustly decided upon by a judge 2 in a -- and a member of the judiciary, Manny, 3 and you many times have said to me, We have to 4 uphold the right of the Legislature; we have to 5 make sure that the Legislature takes care of 6 itself. 7 I happen to agree with you, 8 Senator Gold, and what I'm saying to you, 9 Senator Gold, is we can't just change this world 10 for political purposes. If you want to change 11 that statute, you or Senator Dollinger or any 12 other person in this chamber can put in the 13 legislation to do it and do it that way. 14 SENATOR GOLD: Fine. 15 SENATOR VOLKER: You don't do it 16 by allowing a bad judicial decision to be 17 upheld. 18 SENATOR GOLD: And will the 19 Senator yield to one more question? 20 ACTING PRESIDENT LACK: Senator, 21 will you yield? 22 SENATOR VOLKER: Yes. 23 ACTING PRESIDENT LACK: Senator 1 Gold. 2 SENATOR GOLD: Senator, I'm glad 3 that you see where I'm going because there's no 4 tricks to these questions. So the bottom line 5 in that understanding that someone can waive the 6 statute of limitations in their own one case is 7 the following -- God bless you -- the following: 8 This legislation, Senator, is not 9 legislation that is affecting the world. It's 10 legislation affecting us. We are the parties. 11 We are the parties, and assuming you're right, 12 which I don't, I think the judge was absolutely 13 right, but assuming you're right, and the 14 legislation gives us the right to withhold this 15 information, isn't it a fact, Senator Volker, 16 that we have a right by resolution, as proposed 17 by Senator Dollinger, to give up that right and 18 say the public wants the books open, the press 19 wants the books -- at least the editorial boards 20 of the press want the books open. 21 SENATOR VOLKER: You got it. 22 Thank you, Senator. I appreciate it. 23 SENATOR GOLD: And, therefore, we 1 will comply. 2 SENATOR VOLKER: Senator, we 3 represent the people. Sometimes I think we 4 forget, I think we should, that we are elected 5 by the people. The people elect us. They don't 6 elect, by the way, editorial boards and they 7 don't elect the press. 8 SENATOR GOLD: Will you yield to 9 a question? 10 SENATOR VOLKER: And, Senator - 11 ACTING PRESIDENT LACK: No, 12 excuse me Senator Volker, Senator Gold. 13 SENATOR VOLKER: You're right. 14 ACTING PRESIDENT LACK: Senator 15 Volker has the floor. 16 SENATOR GOLD: I apologize. I 17 haven't finished yet. 18 SENATOR VOLKER: Let me -- let's 19 keep in mind here, Senator, yes, we can give up 20 our rights, but this house over the years has 21 assiduously refused to do that. We have refused 22 to give up our rights when challenged by 23 decisions that we have felt have been improper, 1 and it seems to me clearly in this case the 2 decision was improper, a decision by the way and 3 keep in mind, we realize that there's a lot of 4 politics involved here. The decision was a 5 decision made by a Democratic judge ruling on 6 Democratic challengers, and we understand all 7 that. 8 As I've said many, many times, we 9 have to understand what we're dealing with 10 here. What we're dealing with here is an issue, 11 though, of the credibility of the Legislature 12 and, Manny, I think you were here 15 years ago. 13 SENATOR GOLD: Unfortunately. 14 SENATOR VOLKER: And -- if I'm 15 not mistaken, and maybe you don't remember, but 16 I think a number of people on your side, in 17 fact, argued about this very provision and said 18 we should go farther, and we should include the 19 Legislature but it's not in this bill, and I 20 would bet you that, if we could get the 21 transcript of that debate, and looking at my 22 colleagues to the left here, I would presume 23 probably that my colleague Senator Leichter 1 probably would have been one of those people who 2 said, You know, the legislature should have been 3 included. But it wasn't. 4 So what I'm saying to you, 5 Senator, is that this resolution says to this 6 body, Don't follow the law, don't do what the 7 law said. Just tell Steve Sloan that he 8 shouldn't uphold the right of this Legislature, 9 and I think that's wrong. 10 SENATOR GOLD: Will you yield to 11 a question now, sir? 12 SENATOR VOLKER: Sure. 13 ACTING PRESIDENT LACK: Senator, 14 will you yield? Senator Gold. 15 SENATOR GOLD: Senator - 16 Senator, you started by saying we don't get 17 elected by the editorial boards, we get elected 18 by the people. You can't be saying with a 19 straight face that our responsibility to the 20 people means we keep our books closed. I 21 haven't gotten one letter from a constituent 22 that said, For God's sake, Senator, whatever you 23 do, don't tell the public how you're spending 1 your money. 2 SENATOR VOLKER: Senator, that - 3 SENATOR GOLD: Yeah. 4 SENATOR VOLKER: May I respond to 5 that? 6 SENATOR GOLD: Want to get to the 7 bottom of that? 8 SENATOR VOLKER: Yeah. May I 9 respond to that, Senator? 10 SENATOR GOLD: Of course. 11 SENATOR VOLKER: I mean I'll - 12 he's proud of that, no - 13 SENATOR GOLD: Of course. 14 SENATOR VOLKER: What we're 15 really saying here is, give us this mail, this 16 mail that only went out to thousands and 17 thousands of people. I mean, yeah, we're really 18 hiding the mail. Remember what this fellow was 19 asking for was, he wanted distribution of the 20 mail, not just, as I understand it, not just the 21 dollar amounts and all that; he wanted copies of 22 the mail that was sent out to every constituent 23 in whatever Senator's district it was. So it 1 wasn't a very good case of being secretive since 2 the darned thing went out to thousands and 3 thousands of people. 4 So I mean when you're talking 5 about secretive here, let's look at what we're 6 really talking about here. 7 SENATOR GOLD: Mr. President, 8 last question. 9 SENATOR VOLKER: This is a 10 different kind of thing. These are defeated 11 candidates complaining about they couldn't get 12 some information they could easily have gotten 13 anyway. 14 SENATOR GOLD: May I ask one last 15 question? 16 SENATOR VOLKER: Certainly. 17 ACTING PRESIDENT LACK: Senator 18 Volker, one last question from Senator Gold. 19 SENATOR VOLKER: Sure. 20 ACTING PRESIDENT LACK: Senator 21 Gold. 22 SENATOR GOLD: Senator -- isn't 23 it a fact, Senator, that there is no statute on 1 the books that prohibits this Legislature from 2 disclosing the amounts of money we spend on mail 3 or giving a more detailed statement to the 4 public of the money that we spend? And isn't it 5 a fact, sir, that without debasing any prior 6 legislatures, without -- without violating the 7 rights of that lovely gentleman known as Steve 8 Sloan, who is not evil -- he only works for 9 us -- that this Legislature can pass a 10 resolution saying the judge may be right, he may 11 be wrong, but there is an outcry, the public 12 wants to know what we're doing with their money 13 and, therefore -- therefore, since there is no 14 statute prohibiting us from opening our books, 15 we do it because it's the right thing to do. 16 SENATOR VOLKER: Senator, I say 17 to you, once again, what you're saying to me is 18 that two wrongs make a right in your -- in your 19 way of looking at things. What you're saying is 20 that we should ignore the fact that we want to 21 uphold a statute passed by this body with a 22 resolution, by the way -- this is not the way 23 this body operates; we operate by bills, bills 1 that are decided on by votes, and that's where 2 this statute came from in the first place. 3 Section 88 of the Freedom of Information Law is 4 pretty clear and unequivocal. 5 I say to you that this is not the 6 way to do this. You can argue if you want to 7 that there should be changes in the way this 8 body operates. You have a right to do that; 9 Senator Dollinger has a right to do that, but, 10 Senator, we have a great right also to make sure 11 that statutes that are passed by this body, by 12 both houses and by the governor, are upheld and 13 the fact that - 14 ACTING PRESIDENT LACK: Excuse 15 me, Senator Volker. Why do you rise, Senator 16 Hoffmann? 17 SENATOR HOFFMANN: Would Senator 18 Volker yield to a question, please? 19 SENATOR VOLKER: Yeah, I'll 20 yield; I will yield, yes. 21 ACTING PRESIDENT LACK: Senator. 22 SENATOR HOFFMANN: Thank you. 23 Senator Volker, you made earlier reference to an 1 issue that came up some years ago - 2 SENATOR VOLKER: M-m h-m-m. 3 SENATOR HOFFMANN: -- where 4 another member of this body found himself in a 5 court action. Could you tell me, please, what 6 was the disposition of this body in terms of its 7 show of unity behind that individual? Was it a 8 bill, or was it a resolution? 9 SENATOR VOLKER: Senator, I think 10 it was a bill, if I'm not mistaken. 11 SENATOR HOFFMANN: No. Senator 12 Volker, it was a resolution. 13 SENATOR VOLKER: No, I think it 14 was a bill. 15 SENATOR HOFFMANN: I remember it 16 very well, because I voted against it at the 17 time, so there is a very clear precedent. I 18 just want to establish for some of my newer 19 colleagues that resolution is, in fact, a 20 correct way for this body to assert itself in 21 reaction to a court case. 22 In that instance, I opposed the 23 position taken by, I believe, every one of my 1 colleagues and said we should accept the ruling 2 of the court in that case and should not appeal 3 as a legislative body, a ruling relative to 4 employment of some of our other Senate 5 employees. But it was very -- it was very clear 6 in my mind, because I still remember how the 7 press accounts handled it. 8 It was a resolution, so I really 9 wanted to rise to ask you that question to make 10 sure that I could correct on the record that 11 there is clear precedent for resolutions of this 12 sort. 13 ACTING PRESIDENT LACK: Senator 14 Volker. 15 SENATOR VOLKER: Senator, you're 16 wrong, and let me tell you how you're wrong. 17 The resolution you're talking about was a 18 different issue. The resolution was the 19 prosecution of the appeal, but the actual dollar 20 amount was in statute that was passed as part of 21 the budget, and let me point that out to you. 22 SENATOR HOFFMANN: Senator Volker 23 yield for one other question? 1 SENATOR VOLKER: Yes, Senator. 2 ACTING PRESIDENT LACK: Senator? 3 Senator Hoffmann. 4 SENATOR HOFFMANN: The process by 5 which the ball began rolling was a resolution, 6 was it not, Senator Volker? 7 SENATOR VOLKER: I'm not even 8 sure that's true, Senator, but this is not a 9 process to get the ball rolling. This is a 10 resolution do say, Forget a statute. 11 SENATOR HOFFMANN: Well, that was 12 a resolution that said, Ignore this judge; we'll 13 go on about our own business. It was a 14 resolution, as is this a resolution. We were at 15 a process at a similar point in time in reaction 16 to a court decision. 17 SENATOR VOLKER: Except - 18 SENATOR HOFFMANN: I just wanted 19 to make sure the record was clear on that. 20 SENATOR VOLKER: Let me make the 21 record clear on that, Senator. 22 ACTING PRESIDENT LACK: Senator 23 Volker. 1000 1 SENATOR VOLKER: The record is 2 clear, Senator, that we passed a statute here, a 3 statute that said -- that set up freedom of 4 information and now, by a resolution, we are 5 saying we should not uphold that statute. 6 Once again, I say I think that's 7 wrong, no matter what your opinion is of the 8 issue of freedom of information. The statute is 9 clear. If you're going to change that, it ought 10 to be changed by legislation and not by some 11 resolution. 12 ACTING PRESIDENT LACK: Senator 13 Halperin. Excuse me. There is a list: Senator 14 Halperin, Senator Hoffmann, Senator Leichter, 15 Senator Dollinger. 16 Senator Halperin. 17 SENATOR HALPERIN: Thank you, Mr. 18 President. 19 There's a certain irony that 20 strikes me in listening to this debate, because 21 what we're really talking about is, should we be 22 spending the public's money to prevent the 23 public from knowing how we're spending its 1001 1 money, and whether the court is correct or not 2 -- and I do believe that the court is correct 3 -- I think that for those of you who think that 4 the court is correct, that we should be willing 5 to give up our rights when our rights are 6 wrong. 7 There's no substantive argument 8 that I've heard on the floor today explaining 9 justification as to why we as a public body 10 should not disclose to the public how we're 11 spending the public's money. I haven't heard a 12 single argument. I don't think there is an 13 argument for it, and I think that everyone 14 within earshot should know that the Assembly 15 which was alluded to as the other body that 16 voted to pass this into law, in fact, does 17 exactly what this court decision says that we 18 ought to do. 19 SENATOR VOLKER: Mr. President, 20 Mr. President. 21 ACTING PRESIDENT LACK: Senator 22 Volker, why do you rise? 23 SENATOR VOLKER: Will Senator 1002 1 Halperin yield to a question? 2 ACTING PRESIDENT LACK: Senator 3 Halperin, will you yield? 4 SENATOR HALPERIN: I would yield 5 to a -- to a question, if I could just complete 6 my thoughts a little more. 7 ACTING PRESIDENT LACK: In a 8 moment, I think, was the answer. Senator 9 Halperin. 10 SENATOR HALPERIN: Would be 11 fine. My thought processes are so fragile, I 12 wouldn't want them disrupted by your question, 13 sir. 14 The other body of this 15 Legislature discloses this information to the 16 public, because it's the right thing to do. The 17 Congress of the United States discloses 18 information in far greater detail than this 19 judge has told us to do, because it's the right 20 thing to do. Legislatures across this country 21 disclose this information. Local government, 22 governmental legislatures disclose this 23 information. My own city of New York, the City 1003 1 Council, discloses information. There's nothing 2 wrong with this information. 3 It does not make sense for us as 4 a body to be spending money to prevent something 5 from happening that's the right thing to 6 happen. Whether or not we can win on some 7 technical issue is not really the question here 8 and what the court did is it pointed out the 9 hypocrisy of our position here. I say "our" as 10 a body, not my personal position. 11 The court pointed out language 12 that was in the intent of the law that we then 13 went on to ignore in carrying out our own 14 responsibilities and in keeping our own house in 15 order. The court said that the more -- pointed 16 out that the more open a government is with its 17 citizenry, and this is the language from the 18 legislation, the greater the understanding and 19 participation of the public in government. 20 Maybe you disagree with that. 21 Maybe we don't want the citizens to understand 22 how we spend their monies. The court went on to 23 point out other language. It is incumbent upon 1004 1 the state, and this is language that those of us 2 who are here voted on. "It is incumbent upon 3 the state and its localities to extend public 4 accountability wherever and whenever feasible." 5 Well, what's not feasible about 6 providing this information to the public? It's 7 very simple to do. We can do it. 8 The court went on to point out 9 that "access to such information should not be 10 thwarted by shrouding it with the cloak of 11 secrecy or confidentiality." What's wrong with 12 any of the language that the court pointed out? 13 Maybe we could end up reversing 14 this decision at the Appellate Division; I don't 15 know. I don't think it should be reversed. But 16 why would we want to? What would be the purpose 17 of it? What would we be accomplishing? I see no 18 reason to proceed to appeal this decision. 19 So far as our good Secretary is 20 concerned, I have no doubt that he did not 21 intentionally violate the law, and once again, 22 as has been stated, it's really not his decision 23 what the policy of this body should be. He is 1005 1 supposed to carry out the policy. 2 We can make it very clear that 3 our policy is open government, and Steve Sloan 4 can walk out of here with his head high knowing 5 that he's always carried out his responsibil 6 ities in a proper manner. So there's really no 7 need whatsoever to appeal this. 8 And now, Senator Volker, I gladly 9 yield to your question. 10 ACTING PRESIDENT LACK: Senator 11 Volker. 12 SENATOR VOLKER: Yes, I wouldn't 13 have, but I just wanted to ask a question. I 14 assume you realize that the Assembly policy is 15 not quite what this resolution says. The 16 Assembly has all sorts of caveats in their 17 policy that does not allow for totally open and 18 free disclosure. 19 In fact, they, as I understand it 20 -- tell me if I'm wrong -- they even have an 21 officer over there that tells people what can be 22 disclosed, and I think there's a policy clause 23 that says something like, and it shall be not 1006 1 subject to the Freedom of Information Act; isn't 2 that correct? 3 SENATOR HALPERIN: Well, there - 4 there may be such language and, once again, if 5 this house were serious about implementing a 6 rational policy, there might be a way to 7 negotiate with the plaintiffs in the case and to 8 come up with some kind of agreement. But what's 9 really at issue here is an ongoing attempt by 10 this body to stonewall any effort whatsoever to 11 bring to the public's knowledge the -- a way 12 that we spend their money. 13 SENATOR DALY: Mr. President. 14 SENATOR HALPERIN: Now, I mean we 15 are going to be holding a hearing tomorrow on 16 the legislative budget because I made an effort 17 to have hearings held on the legislative 18 budget. It was -- these efforts were ignored 19 and so tomorrow the members, the Minority 20 members of the Senate Finance Committee and some 21 other members of the Minority are going to be 22 holding a hearing on the legislative budget 23 doing the best we can to bring to the public's 1007 1 knowledge how we spend their money. 2 ACTING PRESIDENT LACK: Excuse 3 me, Senator Halperin. 4 SENATOR HALPERIN: Yes. 5 ACTING PRESIDENT LACK: Will you 6 yield to a question from Senator Daly? 7 SENATOR HALPERIN: Yes. 8 ACTING PRESIDENT LACK: Senator 9 Daly. 10 SENATOR DALY: I have a copy of 11 the Assembly rules, and perhaps I can shed a 12 little light on that question. 13 Senator Volker is right. The 14 Assembly rules begin and then go directly into a 15 number of exceptions, and I think the final 16 sentence sums it up. It says: The 17 determination of the Assembly records access 18 appeals officer with respect to the denial of 19 access to any material to which access is 20 voluntarily available under the provisions of 21 this statement, shall be final and not subject 22 to further review. 23 ACTING PRESIDENT LACK: Senator 1008 1 Halperin. 2 SENATOR HALPERIN: Well, once 3 again, I would be most pleased, even though I'm 4 not sure that the Assembly rules do go as far as 5 they should. I'd be most pleased if we in this 6 house would be willing to accept the Assembly 7 rules. 8 But what's really happening here 9 is that a case that was brought without my 10 knowledge for sure -- I don't know that any 11 other member of this house knew about it on 12 either side of the aisle until after it was 13 brought -- happens to have catapulted this issue 14 into the public view, and has really thrown into 15 question our policy here. 16 So this is a very convenient way 17 to deal with this issue in our own house. The 18 issue is before us. It's before us in the 19 courts, and we're going forward spending money, 20 and the other irony is that, if anybody ever 21 wanted to find out how much money we're spending 22 on this case, they couldn't even do it unless 23 through the munificence of those that control 1009 1 the Senate, we're going ahead and spending the 2 money in the cloak of secrecy which is what we 3 said when we passed the public -- the public 4 information law, that we didn't want to do. 5 Now, this resolution affects the 6 Senate only. I think that our policy should be 7 not to challenge this, and if you do have 8 specific concerns about the decision itself, 9 then instead of appealing it, I think it would 10 make sense to try to work out with the 11 plaintiffs in the case, a reasonable policy, 12 maybe a little bit unreasonable, at least if it 13 moves us in the right direction, but to once 14 again just try to stone wall this thing, I don't 15 think is the right way to go. 16 ACTING PRESIDENT LACK: Senator 17 Hoffmann. 18 SENATOR ONORATO: Mr. President. 19 ACTING PRESIDENT LACK: Senator 20 Onorato, why do you rise? 21 SENATOR ONORATO: Senator 22 Halperin, would you yield to a question? 23 I believe you were here - 1010 1 ACTING PRESIDENT LACK: Senator 2 Onorato. 3 SENATOR ONORATO: I believe you 4 were here 15 years ago when this bill was 5 passed. 6 SENATOR HALPERIN: Yes. 7 SENATOR ONORATO: At that 8 particular time -- I'm not an attorney -- do you 9 believe it was the legislative intent when we 10 enacted the Freedom of Information Act, that it 11 was meant to exclude the legislative body from 12 disclosing the finances that we spend of the 13 taxpayers' money? 14 SENATOR HALPERIN: I think in 15 asking in terms of intent, it was my 16 understanding that the intent was to open up 17 government, not part of government, not other 18 people's parts of government, but to open up 19 government. 20 There's nothing wrong with 21 opening it up in the way that this court 22 decision would suggest. So it was my intent 23 when I voted for the bill, I can't speak for 1011 1 anyone else, to open up government to the public 2 scrutiny. 3 SENATOR ONORATO: Thank you. 4 ACTING PRESIDENT LACK: Senator 5 Hoffmann. 6 SENATOR HOFFMANN: Thank you, Mr. 7 President. 8 I'm pleased to rise in support of 9 my colleague's resolution, and I want to 10 compliment Senator Dollinger for having the 11 common sense to bring such a matter before our 12 house and to bring it in the only way that was 13 available to him. He has been criticized now 14 several times by another colleague for bringing 15 a resolution. In fact, he's not even actually 16 bringing the resolution. He's doing the very 17 best he can under the arcane rules of this house 18 by attempting to discharge a resolution that is 19 locked in the grips of the Majority Leader, so 20 that it can actually be voted on on the floor. 21 Let's make no mistake about what 22 the limitations are here. Because of the 23 absolute control over bills and resolutions in 1012 1 this house, then Senator Dollinger's resolution 2 is not even before us at this moment, only his 3 urgent plea that we consider this resolution 4 that would prevent the use of taxpayer dollars 5 by having an appeal of the very logical court 6 ruling which requires the members of this body 7 through the leadership to publicize the amount 8 of money that we spend on mailings. 9 What could really be more logical 10 than that? We are elected by people across this 11 state to do their bidding. If, in the course of 12 communicating with them, we spend umpteen 13 dollars in writing to them, isn't it perfectly 14 logical for us to explain how much money we 15 spent? Nobody is censoring our right to 16 communicate. Nobody is even suggesting that we 17 don't have an obligation to sometimes 18 communicate to our constituents. 19 What is being suggested here 20 through the courts is that we do have an 21 obligation to list the dollars that we spend on 22 such communication. I have no problem with 23 that. The people I represent think it's 1013 1 imminently logical. 2 What actually frustrates me in 3 this whole process, I must confess, is the fact 4 that I can not even say to my constituents how 5 much money I have spent on mailings because of 6 the secrecy with which mailing in this house is 7 handled. I don't even know how much money I 8 spent last term or two terms or the last four 9 terms. 10 I did do this bit of accounting. 11 I found out that, because I had decided at the 12 beginning of my fourth term, that I would not do 13 any newsletters -- I just made a little personal 14 decision that I would try my own little bit of 15 economizing. I knew we were in terrible fiscal 16 straits as a state, and I just called my staff 17 together back in January of 1991, and I said, 18 Don't anybody bother me about newsletters; we're 19 not going to do any. Several people thought 20 that was not a good decision, that we should be 21 writing often to people in the district. I 22 said, Well, I'm really not comfortable doing 23 that now; we have to show some place where we're 1014 1 personally economizing. 2 I never made a press announcement 3 about it. I never made any big announcement; 4 didn't sent out a newsletter saying I wasn't 5 going to send any newsletters. I just didn't 6 send any. 7 Now, if it costs $25,000 to send 8 a newsletter counting the printing, the mailing 9 and the labels, which is the only estimate 10 available to me, if it cost $25,000, and I 11 didn't send six of them, then it goes to figure 12 that I should have saved the taxpayers in the 13 48th Senate District about $150,000 in news 14 letters. 15 And then I didn't send any 16 targeted first class mailing. I didn't write to 17 the realtors association; I didn't write to the 18 bankers; I didn't write to presidents of 19 insurance agencies, all the lists that are 20 available. I didn't do any of that stuff. I 21 just didn't send any targeted first class 22 mailings. So let's take a modest figure and say 23 maybe that was $50,000 that I saved for the 1015 1 people of my district. 2 Now, I find out through a court 3 decision that another Senator, maybe several 4 other Senators in other parts of this state, may 5 have used that money that I saved. I didn't 6 save it at all. It was just moved through this 7 big slush fund that is used as the Senate 8 mailing allowance, it was just shifted over to 9 somebody else, and possibly even to somebody who 10 may have sent as many as 14 newsletters in a 11 given district. 12 Now, there's just something wrong 13 with a system that allows that much maneuvering 14 internally and refuses to be publicly account 15 able about taxpayers' spending. 16 I'm not suggesting that it's 17 appropriate to limit everybody to one or to two 18 newsletters or that we should say, new members 19 are entitled to a whole bunch and older members 20 don't have to do as many. I'm sure there is 21 some flexibility, but let's at least do it 22 openly. 23 The public has every reason to be 1016 1 suspicious of us if we will make decisions in 2 secret and if we refuse to divulge what we do 3 with their dollars. And to Senator Volker, I 4 must say how surprised I am at your comment 5 addressed to Senator Dollinger about the cameras 6 here today in the chamber. You said he was 7 speaking to the cameras. 8 Well, I have -- I've seen you, 9 Senator Volker, speak at length on an issue that 10 you feel very committed to when the death 11 penalty comes up, and I have sometimes debated 12 alongside you on that, and I vote with you in 13 favor of a death penalty in this house. Do you 14 think that the cameras are here for some other 15 reason today than they are when you debate on 16 the death penalty? 17 I want you to understand some 18 thing that Senator Dollinger understands. The 19 cameras are here because this is newsworthy. 20 When men and women who are elected to safeguard 21 taxpayers' dollars refuse to divulge how they 22 spend them on their own benefit, that is news, 23 and sadly it supersedes news about almost 1017 1 anything else we do which could be for the 2 public good. 3 I want to pass this resolution. 4 I want to bring it to the floor and then pass 5 this resolution so we can put it behind us. I 6 believe there is much good that comes out of 7 this chamber, and I want to see us get on about 8 the business that we are elected to be here for 9 and not have to make excuses about our internal 10 communications activities and how we evade ques 11 tions, sensible questions, about expenditures of 12 taxpayer dollars. 13 ACTING PRESIDENT LACK: Senator 14 Leichter. 15 SENATOR LEICHTER: Yes. Mr. 16 President, one hears much talk in this Capitol 17 about public financing of campaigns. The 18 Assembly talks about it. The Governor talks 19 about it, but only the Senate Republicans 20 practice it. You practice public financing. 21 You're using public monies to finance the 22 campaigns of some of your members. 23 Now, let's talk what this is all 1018 1 about. What is this resolution? Why is it be 2 fore us? It's before us because this body has a 3 rule that a member can send out three district 4 wide mailings a year plus a hundred thousand 5 dollars in first class mail -- a hundred 6 thousand pieces. 7 We have found out, we have pretty 8 strong evidence, that in the past campaign, that 9 some members of the Majority were given 10 additional mailing rights in clear violation of 11 the rules of this house in an obvious attempt to 12 use public monies to help their reelection 13 campaign. That's wrong. 14 Now, an effort was made to find 15 this out. It wasn't of interest only to a 16 defeated candidate. It was of interest to the 17 public, and it was of interest, let me say, to 18 me as a member of this house, because if you're 19 limiting me to three newsletters and you're 20 giving somebody else eight or nine or ten or 21 even more newsletters, I want to know about 22 that. 23 I didn't have a part of bringing 1019 1 this lawsuit. I didn't know the lawsuit was 2 brought, but it was, and it raised a very simple 3 basic proposition which is, does the public have 4 a right to know how public monies are spent? 5 And not surprisingly the judge said, of course. 6 In fact, to state the opposite is really to 7 state a proposition that cannot be believed by 8 anybody who has any sense, and I -- I must say 9 that anybody who would listen to the debate here 10 would say that we are -- that this Legislature 11 is out of touch with reality. 12 To hear Senator Volker say that 13 we're upholding the right of the Legislature! 14 What right? We have a right to keep from the 15 public how we spend public monies? We have a 16 right to say that we're in favor of public 17 financing of campaigns - 18 ACTING PRESIDENT LACK: Senator 19 Paterson, why do you rise? Excuse me, Senator 20 Leichter. Senator Paterson, why do you rise? 21 SENATOR PATERSON: Mr. President, 22 might you establish for me whether or not 23 Senator Leichter would be willing to yield for a 1020 1 question? 2 ACTING PRESIDENT LACK: Senator 3 Leichter, would you yield to Senator Paterson? 4 SENATOR LEICHTER: Frankly, 5 Senator, I would prefer if I could yield in just 6 a few minutes even to as good a friend as you. 7 I would, if I could - 8 SENATOR PATERSON: This is - 9 SENATOR LEICHTER: -- just to make 10 some of the points that I was in the midst of 11 making. 12 SENATOR PATERSON: This is -- I 13 don't know if I can hold out a few minutes, 14 Senator. 15 ACTING PRESIDENT LACK: Senator 16 Leichter, Senator Paterson has denoted some 17 urgency in his remarks. 18 SENATOR LEICHTER: Senator, 19 keeping in mind the great impatience and 20 obviously the very pertinent question you're 21 going to ask, I will try to make this point very 22 brief, buff I do want - 23 ACTING PRESIDENT LACK: One 1021 1 moment, Senator Paterson. Senator Leichter will 2 be with you after a brief moment. Senator. 3 SENATOR LEICHTER: But I -- but I 4 I do want to make this point because I just want 5 you for a moment to take a look at what Senator 6 Volker said, and I love Senator Volker; he's a 7 great Senator, but you know, maybe in this 8 chamber, we have developed our own logic. 9 We are out of touch. That's why 10 the public is so angry at not only this 11 Legislature, but public officials to say, we are 12 upholding the right of the Legislature. What 13 right? The right to keep the public from 14 knowing how their money is being spent? He said, 15 you know, we sometimes forget that we represent 16 the public, as if the public is saying, you go 17 and spend public money so that I, the public, 18 may not know how you're spending money. That's 19 what I sent you up to do. Senator Volker! 20 Then he says it involves the 21 credibility of the Legislature. I say to you, 22 that if the public knew and understood what you 23 are doing in, one, using monies surreptitiously 1022 1 for campaigns, secondly, refusing to disclose 2 it, thirdly, spending public money to fight a 3 court decision which says you got to disclose 4 it, we would have no credibility. I don't know 5 whether we have any credibility now, but we 6 would have -- they would drive us out of 7 office. 8 I mean that's what this appeal is 9 about, and to argue about, we can't have the 10 Secretary of the Senate be found to have 11 violated the law. My God, this is the due 12 process, the civil rights of poor Steve Sloan 13 are involved here. They're not civil rights. 14 He's not being found guilty of any crime. He's 15 not being sent off to jail. 16 The question is whether the 17 Senate, that's what this is involved, not Steve 18 Sloan, whether the Senate, as a body, should 19 spend public money to keep the public from 20 knowing what the public is entitled to know. 21 How can you stand up here and, with a straight 22 face, maintain that the public should not know 23 what mailings are being sent out? That's all 1023 1 that we ask for. Doesn't the public have a 2 right to know? Aren't we talking about monies 3 that's not our money? Belongs to the public, 4 and we are the stewards of the public. We are 5 the fiduciary. Fiduciary's have an obligation 6 to account and, indeed, every other level of 7 government must account. 8 If -- if an executive agency 9 said, We will not tell the Legislature how much 10 we spend on mailings, and so on, there'd be an 11 outcry. We'd say outrageous! Undemocratic! We 12 would fight that executive order or that 13 executive agency that sought to carry -- to hide 14 this from the public, I could see how outraged 15 my good friend, Senator Daly, would be under 16 those circumstances, and he'd be right. 17 How can we maintain that the 18 Legislature has a different right? Are we above 19 the law? Are we not subject to the rules that 20 ought to apply to everybody else? I must say, 21 listening to Senator Volker's argument, I think 22 if he had been in Congress at the time that the 23 House banking scandal occurred, he would say 1024 1 that money should be spent to keep the public 2 from knowing what members used that privilege in 3 a fashion which some people have criticized. 4 Isn't the public entitled to 5 know? And that didn't -- by the way, that 6 wasn't even public money. That was their own 7 private monies, and I think the public had a 8 right to know, and certainly they have a right 9 to know if there were mailings sent on behalf of 10 members of the Majority in campaigns, and we 11 have pretty strong evidence that it was -- that 12 that indeed occurred. 13 Somebody sent me some 16 or, I 14 don't know, 14 newsletters that Senator Goodman 15 sent out. I don't know, by the way, I don't 16 know why you guys need it. You in the Majority, 17 you've got so much money anyhow, the PACs, the 18 unions and this, they've given you all this 19 money. Senator Goodman, you can't go on 20 campaign time if you live in Manhattan, you 21 can't walk the streets without seeing buses with 22 enormous signs on it, saying "the Statesman of 23 the Senate." He sends it all over Manhattan, in 1025 1 my district. There's all these buses, and some 2 of the upstaters may not know who I'm referring 3 to, Senator Goodman. He says it, so it must be 4 so. He says he's the Statesman of the state 5 Senate. 6 In my district, people come up to 7 me because these buses are all over Manhattan, 8 and they say, "Leichter, you're not a statesman, 9 you've been up there 20 years and you're still 10 not a statesman?" I said, "I don't have enough 11 money. You're a statesman if you have enough 12 money to say you're a statesman." 13 So I don't know why he needed 16 14 mailings, but you know, this is really what it 15 comes down to. I don't know why you don't 16 reveal that information. I don't know why you 17 take positions that are utterly in defensible, 18 and that really brings, I think, disgrace to a 19 body that we all love and that I think, by and 20 large, that we serve honestly, intelligently, 21 with good faith, but every once in a while, we 22 do -- and I'm not just saying it's the Senate 23 Republicans; it happens in the other house; 1026 1 we've done things -- but at this moment we're 2 talking about a principle that you're trying to 3 establish, which is that you can keep the public 4 from knowing how you're spending the taxpayers' 5 money, and that's an indefensible principle, and 6 that's what's involved in this resolution, not 7 if it's legal, not if it's, as I said, the civil 8 rights of poor Steve Sloan, or if we've got to 9 uphold the sanctity, the integrity of the 10 Legislature, by saying that we can do things 11 that the public, if they understood, you know, 12 would scream with anguish. 13 What this is all about is that 14 the public has a right to know this, and you've 15 got to reveal it, and I -- I think the sooner 16 that you give up a position that you know is 17 wrong, I think the sooner we can go on to more 18 productive things. And Senator Halperin said, 19 we're going to hold a hearing tomorrow on the 20 legislative budget. You've heard me talk about 21 it. Usually it's at 3:00 or 4:00 a.m., in the 22 morning, and everybody is moaning and groaning, 23 and it's wrong, and we don't need to do this. 1027 1 We don't need to do this, and we shouldn't 2 maintain this appeal. 3 Give the public this information; 4 it has a right to know. That's what Senator 5 Dollinger is saying. And it's good to get a new 6 voice here, a new look because I think these new 7 members come in, and they say, "My God, the 8 emperor has no clothes." 9 ACTING PRESIDENT LACK: Senator 10 Leichter, Senator Paterson is still holding it 11 in. 12 SENATOR LEICHTER: My God, I 13 forgot about him. 14 SENATOR PATERSON: Mr. President, 15 I don't remember the question. But, Senator 16 Leichter, what I would ask you is, have you 17 noticed that the temperature in this chamber has 18 dropped severely in the last half hour since we 19 started this? 20 So being that the Calvin scale is 21 measured by minus 270 degrees Celsius or minus 22 459 degrees Fahrenheit, I was wondering if you 23 had an explanation for why the temperature has 1028 1 dropped so severely in this chamber. 2 SENATOR LEICHTER: Senator, it 3 was partly in recognition of this that I tried 4 to put a lot of heat into my comments. 5 Obviously I didn't do well enough. 6 SENATOR PATERSON: Mr. President, 7 on the - 8 ACTING PRESIDENT LACK: Senator 9 Paterson, I hate to interrupt you, but there is 10 a list of several Senators before you. I 11 recognized you to ask a question of Senator 12 Leichter. I'm afraid you're going to have to 13 hold it in a little bit longer. 14 Senator Gold. 15 SENATOR GOLD: Pardon me? 16 ACTING PRESIDENT LACK: You asked 17 to be recognized. 18 SENATOR GOLD: No, I asked my 19 questions. I'll wait for Senator Paterson. 20 ACTING PRESIDENT LACK: Senator 21 Dollinger. 22 SENATOR DOLLINGER: I'll waive at 23 this time too. 1029 1 ACTING PRESIDENT LACK: Senator 2 Daly. 3 SENATOR DALY: I'll waive. 4 ACTING PRESIDENT LACK: Senator 5 Jones. 6 SENATOR JONES: Yes. I would 7 like to rise and join my colleagues in support 8 of this resolution. I understand that I have 9 been referred to as the naive one here. Ordin 10 arily, one might be insulted by that kind of 11 comment. Today, frankly, I feel kind of good 12 about it. I'm glad I'm naive and that I don't 13 understand all these intricacies or whatever 14 went into this. 15 As you all know, I taught 16 elementary school, so to me it's fairly simple, 17 two plus two is four. In this case, the way I 18 look at this is there's money, I'm assuming it's 19 public money because no one asked me to 20 contribute when I came here, so I assume the pot 21 of money we're working with must belong to the 22 taxpayers. As a result, that makes one part of 23 the equation. 1030 1 The second part is, the tax 2 payers, at least the ones I've heard from, are 3 asking me, what are we doing with that money? 4 We're sitting here asking the Governor day after 5 day, what is he doing with the money? We ask our 6 school districts at home what are they doing 7 with the money, and everyone seems to have an 8 answer but us. 9 So I guess what I'm left with is, 10 as an educator, I also am a lifelong learner, so 11 I would hope that one of my colleagues could 12 help me learn. I did -- I didn't steal it, must 13 be something public about it. I do have here 14 the Assembly mailing totals and everything that 15 I asked for, and no one made me sign an 16 affidavit or whatever. I was able to get it. I 17 have my Congresswoman's -- here this fills up 50 18 pages, and I really don't care that she sent a 19 $1.98 letter, but I think it's nice that I know 20 that and everywhere I go I find that, and I 21 guess what I'm asking my colleagues, any one of 22 them, is could you just tell me why; what was 23 the rationale that we can't do these same 1031 1 things? 2 ACTING PRESIDENT LACK: Senator 3 Marchi. 4 SENATOR MARCHI: Yes, Mr. 5 President. 6 It's a rather unusual course of 7 events that bring us here today, and I don't 8 think it's anybody's fault in this chamber, but 9 we do have -- we do live in a land that's 10 governed by law. The Latins had a saying, Nola 11 pena sensa sine lege, no pain without a law. So 12 you can't -- you can't, by reason of under 13 inclusion supply that which is not in the law. 14 So if we're going to discharge 15 our responsibilities in a responsible way, then 16 we have to recognize that fact. The judge that 17 made the decision spoke exclusively in terms of 18 the declaration of intent. The declaration of 19 intent. 20 Now, if that were descriptive of 21 the whole law, there are any number of under 22 inclusions that skillful people could avail 23 themselves of for good reasons and for poor 1032 1 reasons, and that is why it is, I think, very 2 necessary for us to be in the position that we 3 are in to sustain the law. I mean that's basic 4 to our civilization. 5 As a matter of fact, there are 6 penalties provided for, if you deny -- if you 7 deny and you violate any reportage failure under 8 the Public Officers Law. Section 79 provides, 9 and there's no scienter provided, a fine of $250 10 upon the officer or member who has refused or 11 neglected to be paid to the treasurer of the 12 state. 13 So that this can be very 14 serious. Section 195 of the Penal Law has 15 provisions addressed to that. I'm not sure 16 whether they apply the question of scienter or 17 not, under 195 of the Penal Law, but they do 18 have -- they do have also those provisions, and 19 the judge didn't get very far because, after he 20 left the declaration of intent, he says that, of 21 course, the intent seeks to realize the greatest 22 and most profound information that you possibly 23 can elicit from a public agency, but he -- he 1033 1 goes on to say that it's not correct of the 2 Senate to go -- to take this course of action, 3 because it denies petitioners access to 4 information in light of the proclaimed 5 legislative purpose of FOIL, the Freedom of 6 Information Law, and in consideration of the 7 fact that other branches of government would be 8 routinely compelled to produce the requested 9 records. Other branches of government. Of 10 course, he got up to Section 87, agency 11 records. Agency records. 12 ACTING PRESIDENT LACK: Excuse 13 me, Senator Marchi. Senator Gold has risen for 14 a question, Senator. 15 SENATOR MARCHI: When I -- when 16 I'm completed, Senator. 17 SENATOR GOLD: Fine, sure. 18 ACTING PRESIDENT LACK: When he 19 finishes. 20 SENATOR MARCHI: He got as far as 21 Section 87. Had he continued to Section 88, he 22 would have read that the state Legislature 23 shall, in accordance with its published rules, 1034 1 make available for public inspection and copying 2 (a) bills and memorandums and (b), (c), (d), 3 (e), (f), (g). There's a whole list of specific 4 mandates where this is to be exercised, and he 5 distinguishes that, but he doesn't distinguish 6 here. He doesn't touch Section 88. It's not 7 mentioned in the decision, but he does -- he did 8 get as far as 87. He said it's routinely 9 required of all other agencies, and he's correct 10 in that statement, I believe. 11 So that we all know that there 12 are penalties that are attached where there's a 13 transgression of a right, that it's all in 14 derogation of the common law. There are many, 15 many of you are lawyers, very fine lawyers, and 16 you know that it has to be strictly construed. 17 You can't apply these lax rules of under 18 inclusion and, by that, sweep into -- into the 19 stream of our jurisprudence matters which were 20 never addressed in a statute, matters which 21 could -- now, I understand you're holding 22 hearings, and you're doing some cogitation on 23 this, but that could be embodied into law, a 1035 1 proposal, a bill that is introduced that 2 addresses certain issues. 3 I'm not prepared to say how I 4 would react to that one way or the other, but I 5 do say that there is an irregularity in the law 6 in which we are pursuing it in this particular 7 exercise. I don't think it's a waste of time 8 because it gives you an opportunity to discuss 9 an issue publicly, but it -- but its adoption 10 and its intrusion into a process that has 11 already gone to the courts should be addressed 12 by the courts, because there are -- it leaves 13 unanswered questions of the propriety of the 14 Secretary of the Senate in discharging the 15 responsibilities which were -- with total 16 fidelity to the provisions that were in the 17 Public Officers Law. 18 So you may make very good use of 19 the time to propose something, but I submit that 20 this is not -- not the way, and certainly I 21 don't -- I don't know what the public -- I 22 believe that the Attorney General is not viewing 23 this with disfavor. I don't believe he is, if 1036 1 anybody can help me out on that, but I believe 2 that he is involved in these proceedings. 3 So I -- I think it's improper at 4 this point other than to have it serve as a 5 vehicle for discussion on certain elements that 6 may or may not be included in a proposal or may 7 be adjudicated with reasoning that is not 8 apparent to any of us yet, but certainly was not 9 apparent to the judge that drafted this 10 decision, not even citing the sections which he 11 thought were violated. Didn't mention them at 12 all. 13 I -- I believe that it would be 14 -- it would serve no useful purpose to accede 15 to the thrust of this resolution, although I'm 16 sure it was offered in good faith and with the 17 hope that it might make a contribution. 18 ACTING PRESIDENT LACK: Senator 19 Marchi, Senator Gold had a question. 20 SENATOR MARCHI: I'm sorry. 21 SENATOR GOLD: Will you yield, 22 sir? 23 ACTING PRESIDENT LACK: Senator 1037 1 Gold. 2 SENATOR MARCHI: Yes. 3 SENATOR GOLD: Senator, you used 4 a phrase "under-inclusion" in your debate and I 5 think you inferred that as a result of under 6 inclusion or as a result of not being included 7 in some way, we should not be involved in the 8 process. Senator - 9 SENATOR MARCHI: Well, sometimes 10 it's not - 11 SENATOR GOLD: Senator, my 12 question -- my question is, I know you are a 13 distinguished lawyer and a law-abiding citizen 14 of this state, but are you saying to me that, if 15 John Marchi, Senator John Marchi, were to make 16 public the amount of money that you spent in 17 your mailings or to make public how many times a 18 year you sent newsletters and all of that, that 19 you would be a law violator? 20 SENATOR MARCHI: No, I wouldn't 21 be a law violator. I'm saying what I am -- what 22 I do voluntarily and what I'm required to do, 23 and the subject of the action I assume is the 1038 1 Secretary of the Senate who is discharging the 2 public responsibility and faces penalties. 3 SENATOR GOLD: Right. 4 SENATOR MARCHI: Under the terms 5 of the Public Officers Law. 6 SENATOR GOLD: Right. So, 7 Senator, if you yield to one more question. You 8 said there is a difference between what you're 9 mandated to do and what you do voluntarily. So 10 am I right in understanding, Senator, that 11 Senator John Marchi could voluntarily make these 12 disclosures, that Senator Chris Mega could join 13 you, that Senator Oppenheimer could join you and 14 that, in fact, we all could join with each other 15 and make this information public? As a matter 16 of fact, I got a fabulous idea, maybe we could 17 all pass a resolution and go on a public record 18 that we all want to do it and then we do it. 19 There would be nothing illegal about that; isn't 20 that true, Senator? 21 SENATOR MARCHI: As expressive - 22 as expressive as a matter of policy, if we 23 wanted to -- if we wanted to -- to do it as a 1039 1 matter of public policy, we would amend the 2 rules so that it would provide for -- we would 3 have -- we have, let's see, a (j) -- (j) (k) all 4 the way up to, after (k) would be (l), section 5 (l) would provide for, and then you would have 6 the support of the Public Officers Law in 7 whatever you undertake to do, yes. 8 SENATOR GOLD: Well, Senator, of 9 course, we don't need the support of the Public 10 Officers Law; isn't that true? The Public 11 Officers Law doesn't bar us from giving the 12 information. It may be a mandate, as you read 13 the law, to others but it doesn't bar or forbid 14 this body from passing a resolution that says, 15 quote, Settle this darned case; get rid of it 16 and let us make it public. 17 Isn't it a fact that the Public 18 Officers Law does not bar us from doing that? 19 SENATOR MARCHI: If -- if we rest 20 on its enforcement on the basis of the 21 declaration of intent that the more you know, 22 the better it is. I don't like to go to a 23 reductio ad absurdum, going to the extreme to 1040 1 illustrate a problem, but if the constituent 2 comes with me and doesn't tell me anything 3 unlawful, but he wants confidentiality, I may 4 extend it to him because he has the right to 5 advance his problem as long as there's no 6 violation of the law, in -- in our constituency 7 relationships. 8 I don't want to see the law 9 prostituted or broadened in a way because this 10 business of routing it only to generalities that 11 are contained in a statement of intent and then 12 pointing you to the specifics and how agencies 13 will behave in response to it and how your 14 behavior will follow access to state legislative 15 records, then I think we're -- I think we have 16 to treat it with a certain amount of reverence 17 and respect, and I'm sure you'd join me on that. 18 SENATOR GOLD: Senator - 19 SENATOR MARCHI: But you've just 20 -- you just feel that - 21 SENATOR GOLD: But if you'll yield 22 to a question - 23 SENATOR MARCHI: I don't argue 1041 1 with you on that. 2 SENATOR GOLD: It's not a 3 question of respect. I mean I respect Steve 4 Sloan, I really do. I think he's a loyal 5 employee of the Senate. I don't think he's out 6 there on his own doing anything; he's a loyal 7 employee, and I respect him. 8 But, Senator, you know, you're a 9 practicing lawyer and I respect that, when I - 10 emphasis on the word "practicing". Isn't it a 11 fact, Senator, that the case is over and a jury 12 makes an award and every day in this state 13 people settle the awards even after the jury 14 cases because they don't want to go on an appeal 15 and so instead of paying $2 million, the 16 insurance company pays 1.7, or in another case, 17 there are mandates -- I had one case years ago, 18 I had a jury order the people had to turn over 19 property and the people decided after the jury 20 verdict that they were going to make a 21 settlement. 22 So, Senator, isn't it a fact that 23 there is nothing in the law that prohibits this 1042 1 body from meeting just as we are now, thanks to 2 Senator Dollinger and others, and saying, Let's 3 all talk it out. Our agent, Steve Sloan, was 4 named, not because he did anything other than 5 us, he -- that's the way you bring a lawsuit 6 against the Senate. 7 SENATOR DALY: Mr. President. 8 SENATOR GOLD: As soon as I 9 finish my question, Senator. 10 ACTING PRESIDENT LACK: Excuse 11 me, Senator Daly. 12 SENATOR GOLD: No, I'll yield. 13 That's all right. 14 ACTING PRESIDENT LACK: No, 15 excuse me, Senator Gold. It's Senator Marchi's 16 yield. Senator Marchi is yielding to a question 17 from you. 18 SENATOR GOLD: Oh. Any way you 19 want it, any way you want it. 20 ACTING PRESIDENT LACK: So, 21 Senator Daly, Senator Gold is supposed to be 22 asking a question. 23 SENATOR DALY: Will Senator 1043 1 Marchi allow me to question Senator Gold? 2 SENATOR GOLD: All right. The 3 answer is, I'll take you off the hook. All 4 right? I think I made the point. I'll withdraw 5 the question. Senator Marchi is finished. You 6 want to ask me to yield to a question? 7 SENATOR DALY: Yes, I do. 8 ACTING PRESIDENT LACK: Now, 9 Senator Daly, do you want Senator Gold to yield 10 to a question as a result of his earlier 11 question to Senator Marchi? 12 SENATOR DALY: Yes, I do, Mr. 13 President. 14 ACTING PRESIDENT LACK: Senator 15 Gold, will you yield to a question based on your 16 earlier question? 17 SENATOR GOLD: Piece of cake. 18 ACTING PRESIDENT LACK: Senator 19 Daly. 20 SENATOR DALY: Mr. Gold, I notice 21 on the resolution that you again, going back to 22 a point that I raised before, that the judge has 23 determined that the Secretary of the Senate has 1044 1 acted contrary to law. Do you think that we 2 should allow a decision like that to stand? In 3 other words, he's saying that Mr. Sloan wrongly 4 interpreted the law, wrongly interpreted the 5 law, that he acted contrary to law, that he 6 literally broke the law? 7 Mr. Gold, do you think that - 8 that Mr. Sloan acted contrary to law in this 9 case? 10 SENATOR GOLD: All right. I'm 11 glad you asked that question. Glad you asked 12 that question. If you will give me the 13 authority, and by "you" I mean every member of 14 your side and every member of my side, I'm 15 willing to bet you right now that I can enter 16 into a stipulation in this case which will say 17 the petitioner acknowledges that Stephen Sloan 18 is an agent of the Senate and did not willfully 19 in any way become a law violator but 20 irrespective of whether the law requires it or 21 not, this body settles the case by agreeing to 22 open up our books and make our payrolls and our 23 mailings -- sorry, our mailings public. 1045 1 In doing that, Senator, we will 2 have done a number of things. We will - 3 SENATOR DALY: Mr. President. 4 SENATOR GOLD: I'm not finished 5 with my answer. 6 SENATOR DALY: O.K. 7 SENATOR GOLD: In doing that, we 8 will have taken away the stigma from that great 9 gentleman, Steve Sloan, as to whether or not he 10 violated the law, and we would remove the stigma 11 from ourselves in the fact that we will not open 12 up our books. So there you go. 13 I won't even charge for it. I 14 won't -- don't submit a bill to Herzfeld & Rubin 15 at 40 Wall Street, New York 5...(212) 344-5500. 16 SENATOR DALY: Mr. President, I 17 don't need the address; I can always find them 18 in the book. 19 ACTING PRESIDENT LACK: Excuse me, 20 Senator Daly. 21 SENATOR DALY: Will you yield to 22 another question? 23 SENATOR GOLD: Yes. 1046 1 ACTING PRESIDENT LACK: Senator 2 Gold, will you yield another question? Senator 3 Daly. 4 SENATOR DALY: Are you a party to 5 this case? I'm not a lawyer, sir, so you'll have 6 to put up with me - 7 SENATOR GOLD: No, I - 8 SENATOR. You are not a party, I 9 gather? 10 SENATOR GOLD: No, I don't 11 believe that I'm directly a party except that 12 I'm affected because it blackens the name of the 13 Senate, and I'm a proud member of this body. 14 SENATOR DALY: Mr. President, 15 I'll come up -- I don't have the floor right 16 now. I will ask that my name be put on the list 17 so I can answer that properly. 18 ACTING PRESIDENT LACK: Senator 19 Paterson, it is now your time. 20 SENATOR PATERSON: Thank you, Mr. 21 President. 22 I have the Public Officers Law in 23 front of me, and I'm looking at Section 88, 1047 1 which applies to the records of state 2 legislators and under section 2, and actually 3 the subdivision (i) it just basically states 4 that the Legislature should make all those 5 records, papers and documents as decreed for 6 public copying and also for public information, 7 and I would tend to think that it was this that 8 the Judge Canfield referred to in his decision, 9 as what would have been the legislative intent 10 15 years ago when the Legislature passed the 11 Freedom of Information Act. 12 Now, that might not be right, but 13 I would tend to think that that was what the 14 decision of the Supreme Court justice was, and 15 it is certainly appealable and that's how our 16 judicial system works, that the judiciary has 17 review over the actions of the Legislature and 18 then there is review over the action of the 19 judiciary by appeal. 20 The fact that Senator Dollinger 21 would like to introduce a resolution at this 22 time calling for this body to make a decision as 23 to whether or not the Secretary of the Senate 1048 1 should exercise the option to appeal this 2 particular case is, in my opinion, I think, a 3 judgment that we might want to have made. 4 It would have better been 5 expressed in a bill. It would have been better 6 expressed in a resolution that was actually on 7 the floor. It was expressed in the best way 8 that Senator Dollinger could publicize the 9 issue, which was a motion to discharge this 10 resolution, which I support. 11 I think that I remember being 12 about 19 or 20 years old and getting the mail 13 one day and getting a newsletter from my state 14 Senator, and I remember thinking, and I think 15 this is probably closer to what the public 16 thinks, that it was very nice of my state 17 Senator to take time out to send me a record of 18 what the Senator was working on. 19 The fact is that the perception 20 that I had as of the time I read this news 21 letter that was sent to me, was a perception 22 that was extended to my value of how hard the 23 Senator was working. So I think it's time for 1049 1 somebody to get up around here and say that, in 2 a sense, legislative mailings as sincere as they 3 may be, are quasi-campaign literature, and that 4 those who read it may think very fondly of the 5 individuals who wrote it and may think very 6 fondly of them the next time they are up for 7 reelection. 8 In spite of the fact that I think 9 that the majority of legislators here try to use 10 the newsletters as catalysts for information, 11 that is inevitably the reason why people fight 12 so hard over how many news letters they're 13 getting, and I think it is the reason that we're 14 discussing this issue today. 15 I don't think that it is a 16 situation that necessarily needs to be changed, 17 but it is one that we have to be scrupulously 18 fair, if we -- about, if we are going to 19 maintain the public confidence in our ability to 20 make other decisions -- decisions that Senator 21 Mendez was saying earlier she would rather 22 discuss than discuss this, decisions relating to 23 housing, to substance abuse, to unemployment, 1050 1 under-employment, decisions relating to labor 2 relations, decisions relating to health care and 3 our educational facilities which really, at this 4 point, need a longer discussion than our 5 legislative mailings. 6 So only for the value of what our 7 perception is as a body and what our integrity 8 is, I think that we have to disclose as much 9 information as we can to the public so that it 10 is in the public interest that there not be any 11 misunderstanding of what the legislative news 12 letters are. 13 I think that any attempt to 14 resist the publication of how much money is 15 being spent which is a direct indication of how 16 serious this issue is being taken by this body, 17 really, is not acting in the public interest. 18 The fact that the Secretary wants 19 to appeal is fine. The Secretary might want to 20 exercise that option, but the elected officials, 21 61 of us in this chamber, also have an 22 opportunity to have our voices heard on this 23 issue, and I am thankful that Senator Dollinger 1051 1 used whatever was left of him within our rules 2 to at least put this information out, so that 3 the public may not ever get to find out how much 4 money is being spent on mailings but may get to 5 find out that there are a few people that think 6 that the process could be more fair. 7 ACTING PRESIDENT LACK: Senator 8 Oppenheimer. 9 SENATOR OPPENHEIMER: Thank you. 10 I want to say that I, for one, do 11 not think that Steve Sloan turned off the heat 12 so that we could freeze and move out of here 13 quickly. I know that was Senator Paterson's 14 question a half hour ago before he forgot it. 15 Now, I'm not a lawyer and I don't 16 know if that's beneficial or not beneficial, but 17 I am listening to what's going on here and it's 18 sort of sounding a lot like LaLa Land to me, and 19 I don't mean to be disrespectful, and I do want 20 to compliment the three Republican Senators who 21 have spoken up. They've been good soldiers; 22 they're trying to do the best they can, but this 23 is -- I can not see a higher law that exists 1052 1 than the people's right to know about what's 2 happening with their own government. 3 Almost every other legislative 4 body, I don't -- I can't say all but I believe 5 almost all, maybe all do provide this kind of 6 information and, while you mention the Assembly, 7 I believe the Assembly provides that information 8 concerning mailings twice a year, but that isn't 9 saying that they're doing enough. 10 I think both houses should be 11 doing more, and two wrongs wouldn't make a right 12 if they were doing, you know, less than us. It 13 still isn't right. It is the public's right to 14 know what we are doing, and what's happened in 15 recent years is, the public is questioning us. 16 They're suspicious of us. We are them. We have 17 nothing to hide from them. What we do is good 18 work. Why aren't we proud of it? Why don't we 19 open up everything and say the public should 20 know? We want to restore confidence and 21 certainly I feel that -- that to say that we 22 should spend the public's money so that the 23 public shouldn't know, I mean that I guess is 1053 1 why I said it's LaLa Land, just doesn't make 2 sense, and I don't think any reasoning mind 3 would say it makes sense. 4 ACTING PRESIDENT LACK: Senator 5 DeFrancisco. 6 SENATOR DeFRANCISCO: I think 7 there's two issues here and they seem to be 8 muddled together and I can understand why 9 because politically it's very easy to say the 10 public has a right to know. I mean who could 11 ever disagree with that, with the press writing 12 vigorously over there. 13 Of course, the public has a right 14 to know and issue number one, I think that's 15 true. I think if this was a resolution dealing 16 with disclosure of things like how much somebody 17 spent for mailing, that would be something 18 totally different, and I would vote in favor of 19 something like that, because I think the public 20 does have a right to know. I think - 21 SENATOR LEICHTER: Mr. President. 22 ACTING PRESIDENT LACK: Senator 23 Leichter, why do you stand? 1054 1 SENATOR LEICHTER: I wonder if 2 the Senator would yield? 3 SENATOR DeFRANCISCO: No, I'm not 4 going to yield for a filibuster because I heard 5 him for quite a while, and I'd just like the 6 opportunity to finish my thought. 7 ACTING PRESIDENT LACK: Not at 8 this moment, Senator. 9 SENATOR DeFRANCISCO: All right? 10 ACTING PRESIDENT LACK: Senator 11 DeFrancisco. 12 SENATOR DeFRANCISCO: The second 13 thought -- the second thought is this, that the 14 other issue is whether this lawsuit should be 15 appealed which, in my mind, is a totally 16 separate and distinct issue. 17 If we are going to use the 18 judge's ruling that the declaration of intent in 19 this piece of legislation is going to determine 20 all further questions under this legislation, 21 then it's going to open a very -- a lot of 22 different issues. Maybe you want them to be 23 opened, but I don't think you would if you 1055 1 thought about it. 2 For example, a constituent writes 3 a piece of mail, a letter to me, maybe a very 4 confidential thing, something about someone that 5 they don't want to have disclosed to the world. 6 I write a response back; a dialogue takes place 7 that leads to legislation. That may have been 8 the seed that placed the piece of legislation, 9 the thought in my mind. 10 If we're going to look to the 11 declaration of intent to this legislation that 12 the people have the right to know we've got to 13 disclose everything to the public about what our 14 thoughts are in the thought process as to how 15 the legislation starts from the inception to the 16 end, and this law -- and this case is still on 17 the books because we did not appeal, that is 18 precedent for another petitioner to say, Why did 19 Jane Jones send you a letter and why did you 20 respond in that fashion? We have a right to see 21 that communication because the public has a 22 right to know. 23 So my point is simply this, that 1056 1 if we do not appeal this decision that base all 2 decisions on the Freedom of Information Law on 3 the declaration of intent, it's a precedent that 4 could be used in a much broader fashion. So on 5 the legislation as if sits before us today, I'm 6 going to vote no. 7 But I just want to make clear 8 that I'm not saying the people don't have a 9 right to know on the issue that this judge 10 happened to decide or that the Assembly is wrong 11 in giving out the numbers for each mailing. 12 That's a different issue and, when that's 13 framed, I'll vote differently, but I think you 14 really ought to see what you're really doing and 15 think it through before we go forward with 16 passing something and leaving this on the 17 books. 18 The last -- and I better leave it 19 at that. So I'm going to vote no on this 20 specific legislation, but be very clear that 21 doesn't mean I don't want the public to know 22 about this particular issue. 23 ACTING PRESIDENT LACK: Senator 1057 1 Leichter, you had a question? 2 SENATOR LEICHTER: Senator, if 3 you -- if you will yield not for a filibuster 4 but because I -- I thought you made some 5 interesting comments, and I wanted to fully 6 understand it, and do I understand from your 7 comments that you would -- are in favor of the 8 right of the public to know the mailings that 9 are sent out by the Senate? 10 SENATOR DeFRANCISCO: And the 11 Assembly. 12 SENATOR LEICHTER: And the 13 Assembly, absolutely. You're in favor of that, 14 right? 15 SENATOR DeFRANCISCO: Generally, 16 yes. 17 SENATOR LEICHTER: Well, what 18 does "generally" mean? 19 SENATOR DeFRANCISCO: Well, when 20 the issue is framed in a piece of legislation, I 21 will explain my vote fully as I explained it 22 today. It depends upon what the specific piece 23 of legislation is, and I will -- I will react to 1058 1 it. 2 SENATOR LEICHTER: Senator, I'm 3 not referring to any specific legislation. I'm 4 asking you for the simple proposition. You got 5 up here and you obviously wanted to tell your 6 constituents. Wait a second, I'm not saying you 7 don't have a right to know. 8 Now, I'm asking you specifically, 9 do you favor the right of your constituents to 10 know what mailings are sent out by the Senate 11 and what the cost of those mailings are; in 12 other words, how their monies are being spent on 13 mailings? 14 SENATOR DeFRANCISCO: I have -- I 15 agree with the manner in which the Assembly 16 lists their mailings. 17 SENATOR LEICHTER: So you would 18 be in favor of disclosing the information? 19 SENATOR DeFRANCISCO: I would be 20 in -- I will tell you whether I'm in favor or 21 against a specific piece of legislation when I 22 see how it's framed. For example, this piece of 23 legislation is being touted as something that it 1059 1 really isn't. This is not a question of full 2 disclosure. It's a question of whether to 3 appeal a decision that could leave a bad 4 precedent. That's what I'm saying. 5 I fully explained the vote. I 6 have explained to you that I would be in favor 7 of disclosure in the manner that the Assembly 8 did. Beyond that, I would like to see a 9 specific piece of legislation before I react 10 fully on it. 11 SENATOR LEICHTER: All right. 12 Then, Senator, I -- I gather and I'm sorry to 13 say this, do you mean when you say "generally," 14 you mean it's a nice thing to tell people, but 15 when you get specific then you seem to have some 16 problem with it? 17 SENATOR DeFRANCISCO: No, no, 18 that's quite unfair. I said specifically, I 19 think some of your own members pointed up the 20 Assembly's version of disclosure, and I said, 21 just like some of them said, that that makes 22 sense to me. 23 If there was a piece of 1060 1 legislation in proper form, I'll react to it and 2 I'll tell you specifically the way I stand, but 3 to answer hypothetical questions when we're 4 dealing with a specific resolution here, I don't 5 think is very productive. 6 SENATOR LEICHTER: Senator, if you 7 would be so good as to yield to just one more 8 question. 9 SENATOR DeFRANCISCO: 10 Absolutely. 11 SENATOR LEICHTER: Thank you. 12 I didn't think I was being 13 hypothetical at all. I didn't think I could be 14 much more specific than talking about mailings 15 and I do appreciate your saying that you would 16 be at least willing to go as far as the Assembly 17 goes. 18 But, Senator, my question is, you 19 heard Senator Gold say that this case could be 20 easily settled on the basis, just give the 21 information as to the mailings and we would 22 forget -- there would be no precedent 23 whatsoever. You could withdraw the - 1061 1 SENATOR DeFRANCISCO: Let me just 2 ask you something. 3 SENATOR LEICHTER: Let me just 4 finish the question. 5 SENATOR DeFRANCISCO: O.K. 6 SENATOR LEICHTER: You could 7 withdraw the -- withdraw the decision. In 8 deed, Senator, there would have been no lawsuit 9 if the information had been supplied in the 10 first instance. Just say how many mailings were 11 sent out by a particular Senator during the 12 1992, I guess it was for a 12-month period, and 13 as I understand it, you seem to be in favor of 14 making that information available, so you ought 15 to support this resolution. 16 SENATOR DeFRANCISCO: Well, then, 17 you obviously didn't understand what I said, and 18 I'm not going to repeat it, because it's clear 19 on the record, but to to answer your question, I 20 listened to Senator Gold about his willingness 21 to enter a stipulation. 22 I don't know, maybe I went to the 23 wrong law school. I went to Duke; I think it's 1062 1 pretty good. But Duke Law School taught me that 2 in order to enter a stipulation you have to be a 3 party to the lawsuit; you have to be either the 4 plaintiff or the plaintiff's representative and 5 I don't believe - 6 SENATOR GOLD: Mr. President. 7 SENATOR DeFRANCISCO: May I 8 finish? 9 SENATOR GOLD: You didn't 10 understand what I said. I have said if this 11 body authorized me to be the attorney I'd take 12 it over, I'd settle it, and we'd all be out of 13 here, and you could buy lunch. 14 SENATOR DeFRANCISCO: That's 15 correct, but this body -- this body, all what 16 I'm suggesting to you is we cannot, whether you 17 want to enter a stipulation or not is not the 18 point. The point is presently at this time 19 there is a resolution on this -- on the floor 20 right now, and I think I was clear in saying 21 that all I'm concerned about, I don't think 22 anybody on either side of the aisle would want 23 the type of correspondence that I -- I was 1063 1 referring to disclosed and it's at a risk of 2 being disclosed in the event that this precedent 3 stays on the books. 4 ACTING PRESIDENT LACK: Senator 5 Daly. 6 SENATOR DALY: Mr. President, I 7 think it's clear that what we're taking strong 8 exception to truly is not the message as much as 9 the instrument, and the reason for the 10 instrument. 11 You know, I'm amazed that a group 12 of individuals who I know truly are defenders of 13 individual freedom, and I constantly hear from 14 Senator Gold and Senator Leichter about how 15 important it is that we defend individual 16 freedom, and then I look at a resolution that, 17 by the way, includes -- is so broad and to go 18 along with the points well made by both Senator 19 DeFrancisco and Senator Paterson, it includes 20 first class mailings. Again, a direct violation 21 potential of confidentiality. 22 But what gets me most of all is 23 that here you use the language in the resolution 1064 1 of a judge saying that the Secretary of the 2 Senate was arbitrary, capricious and contrary to 3 the law, and that's key, and an abuse of 4 discretion in interpreting the existing law - 5 the existing law, not the law that you feel we 6 should have, and I don't take -- I take no 7 exception to that, but not -- to deny that 8 person the right of appeal who has been accused 9 of that, to me, is something so undemocratic, 10 unconstitutional, and knowing you, and I'm 11 sincere, knowing how strongly you feel about the 12 rights of the individual, to come up with an 13 instrument, a resolution such as this, would 14 just throw out the appeals. 15 Again, as I said, I'm not an 16 attorney, but to me the Constitution, the 17 separation of powers, the establishment of the 18 appellate court, truly, truly, ladies and 19 gentlemen, indicates how important it is that we 20 maintain the process, the judicial process, that 21 we maintain the separation of powers and, most 22 importantly, that we maintain the right of 23 appeal. 1065 1 And I don't think this body -- I 2 don't think this body has the right really to 3 deny the Secretary of the Senate, who has been 4 accused, and you've mentioned again in your 5 resolution, of violating the law -- of violating 6 the law, which potentially -- potentially could 7 create serious problems for him. There is 8 potential. 9 Let us say that he released all 10 this information, and a member took exception to 11 it and said, You went well beyond; here, read, 12 read the Freedom of Information Act. You went 13 beyond your power, and, therefore, I'm going to 14 charge you, either procedurally inside the 15 Senate or even potentially in the court. 16 Now, you can't be serious; I know 17 you too well, I know you too well, and you 18 recognize this for what it is. I don't take any 19 exception. You've got a political instrument. 20 You're making a point. I respect that, I 21 understand it, but for goodness' sakes, when you 22 try to make that point, don't come up with a 23 resolution that literally deprives a person of 1066 1 his constitutional right because that's what 2 you're doing. 3 SENATOR DOLLINGER: Mr. 4 President, Senator Daly yield to one question? 5 ACTING PRESIDENT LACK: Senator, 6 will you yield? 7 SENATOR DALY: Yes, I will. 8 ACTING PRESIDENT LACK: Senator 9 Dollinger. 10 SENATOR DOLLINGER: Senator Daly, 11 if this body, determined by majority vote that 12 Steve Sloan should not appeal, would he still 13 have the power to appeal, in your opinion? 14 SENATOR DALY: On his own? I 15 don't know. I'm not -- you tell me. 16 SENATOR DOLLINGER: Well, simply 17 asked, isn't he our employee? He does what we 18 tell him; isn't that correct? 19 SENATOR DALY: Yes. 20 SENATOR DOLLINGER: So if we told 21 him to - 22 SENATOR DALY: Wait a minute. If 23 we tell him to do something illegal or wrong, 1067 1 no, he does not do it. 2 SENATOR DOLLINGER: Well, but if 3 we told him to do something because we thought 4 that was what was necessary to do to comply with 5 the law, I assume Mr. Sloan would do it, 6 wouldn't he? 7 SENATOR DALY: If he interpreted 8 -- if he interpreted the order to be a correct 9 and proper one, yes. 10 SENATOR DOLLINGER: O.K. 11 SENATOR DALY: If he interpreted 12 that to be incorrect and improper, hopefully 13 no. 14 SENATOR DOLLINGER: All right. 15 And if he decided that it was improper for him 16 to follow our direction, do you know where he 17 would get the money to finance the appeal? 18 SENATOR DALY: No. 19 SENATOR DOLLINGER: I assume he'd 20 get it from the taxpayers, wouldn't he? 21 Shouldn't we have to disclose where he gets the 22 money for the appeal? 23 SENATOR DALY: I'm sorry. 1068 1 SENATOR DOLLINGER: How he's 2 paying for the appeal? 3 SENATOR DALY: You're denying him 4 the right to the appeal in this resolution. If 5 we pass it as a body and because he is subject, 6 but he's -- I would -- I would gainsay that he 7 would not appeal. 8 SENATOR DOLLINGER: O.K. But he 9 is our employee and he does what we tell him, 10 does he not? 11 SENATOR DALY: Senator, believe 12 me, the point -- you're not getting my point. 13 I'm saying that basically this -- that in this 14 resolution that you sponsored, you mentioned the 15 word, you mentioned the language. You said the 16 judge has accused him of this. You put it in 17 resolution. 18 SENATOR DOLLINGER: That's 19 correct. 20 SENATOR DALY: And the appeal, 21 now, let's look at what the appeal is about. By 22 the way - 23 SENATOR DOLLINGER: Let me - 1069 1 ACTING PRESIDENT LACK: Excuse 2 me, Senator Daly and Senator Dollinger. Senator 3 Dollinger, in this chamber, all remarks are 4 addressed to the floor. You've asked the 5 question; Senator Daly is responding to it. 6 Until he finishes responding, Senator Daly has 7 the floor. 8 SENATOR DOLLINGER: That's 9 correct, Mr. President. I apologize. 10 SENATOR DALY: Mr. President, you 11 just made me forget the very important point I 12 was going to make, but just give me a second, 13 and I'm sure it will come back. 14 Basically the point I've been 15 making is that, in allowing -- in denying 16 someone the right to take exception in court of 17 being accused of acting contrary to the law is 18 something that I just cannot understand. I 19 certainly cannot accept it. 20 And again, going back to my basic 21 point, I take very strong exception to the 22 instrument you've used. I know what you're 23 doing. You know what you're doing. I respect 1070 1 it. You feel strongly about a given issue and 2 you're using this as a means of expressing it 3 but I'm saying when you do that, do that, please 4 don't put together a resolution that so 5 violently violates the Constitution that it's 6 abhorrent. 7 ACTING PRESIDENT LACK: Senator 8 Gold. 9 SENATOR GOLD: Thank you, Mr. 10 President. 11 We're going to close debate for 12 this side, and I have just a moment, and I'm 13 going to yield to Senator Dollinger. 14 First of all, I have a very 15 significant document here. I've heard people 16 talking all day about the Assembly, the Assembly 17 and the Assembly, and I don't know how we have 18 the nerve to criticize the Assembly on this 19 particular issue, because in my hand is a 20 document which specifically sets forth what each 21 Assemblyman spends for their mailing. It's got 22 first class, UPS, and telegrams, each Assembly 23 person, their name and the amount of money that 1071 1 they spend. 2 There's another part of this, 3 each Assemblyperson's name and under 4 "miscellaneous bulk" and "districtwide bulk" 5 the exact penny amount of what each person 6 spends. There's even something here which tells 7 you what the Speaker spends, what the Minority 8 Leader spends, so when we get to the point where 9 we do at least this, we ought to throw rocks at 10 the Assembly, but with all of the talk about 11 what they have to do, they should have done or 12 whatever, this is what they're doing. 13 Senator Daly says that what we're 14 doing is political and, of course, you know, you 15 have an answer to that. All you have to do is 16 the right thing and you take away the issue. If 17 you open up the books, you take away the issue, 18 and then you are politically right. You are the 19 ones who run this place, but the arguments that 20 I've heard today really are hogwash. 21 There is nothing illegal about us 22 settling a case. There is nothing illegal about 23 us opening our books. There's no statute that 1072 1 stops us from opening our books. There's no 2 statute that stops us from settling this case 3 with an honorable statement about Steve Sloan 4 and then this body saying, since there is no law 5 that prohibits us, and since it is the right 6 thing to do, we're going to do it. 7 I've heard people like Senator 8 DeFrancisco and others say they aren't opposed 9 to a new law. Why are we opposed to just 10 letting out the information? Enough of this 11 business. Enough of it. There isn't anyone 12 here, including Steve Sloan, whose ego is more 13 important than the rights of the people in this 14 issue. 15 I yield to Senator Dollinger. 16 SENATOR DOLLINGER: Thank you, 17 Senator Gold, and I appreciate the comments of 18 my colleagues pro and con on this -- this 19 resolution or this motion. 20 I think it's an important debate 21 to have had. I wish we could get into the 22 technical issues of what we spend on mailing and 23 how we account for it, because I think it would 1073 1 be important to have for the people of this 2 state a further debate if this res... motion to 3 discharge is approved. Then we can look at the 4 resolution, and I hope at some time we'll look 5 for the kinds of things that Senator Volker has 6 mentioned, Senator DeFrancisco, Senator Daly has 7 mentioned, to look at bills that will actually 8 put into law clearly and concisely exactly how 9 we should operate this body. 10 Let me just summarize a couple 11 quick things. One, people have talked about the 12 Assembly. We ought to set the standard for the 13 Assembly. We don't need the Assembly to set the 14 standard for us, and I'll tell everybody in this 15 room, if we do set a standard of disclosure, 16 I'll be the first to walk across the hall, find 17 sponsors and, frankly, take the same message to 18 them that I'm trying to get across to this body, 19 that disclosure is a good thing, and the people 20 who pay the bills ought to know what they're 21 paying for. I'll be right there. I'll join all 22 of you to do it. 23 Two, I can't believe we spend any 1074 1 time talking about government secrecy. This 2 isn't a secret government. We're not the 3 Central Intelligence Agency. We're the Senate 4 of the state of New York. We're spending the 5 people's money. We ought to tell them what 6 we're spending it for. 7 I drew a simple analogy when I 8 was sitting here. We are the board of directors 9 of the corporation. Would we call the marketing 10 department downtown -- downstairs in our 11 corporation and say, How's the marketing for the 12 corporation going, and the message we get back 13 is, We're not going to tell you. We're not 14 going to tell you who we're sending first class 15 mail to. We're not going to tell you who we're 16 sending bulk mail to. We're not going to tell 17 you who we're sending newsletters to. The 18 marketing department isn't going to tell us, the 19 board of directors, what we're doing in our 20 contact with our consuming public or, in our 21 case, our constituents and taxpayers. 22 I submit there isn't a person in 23 this room who would sit on a corporation and 1075 1 allow the marketing department to tell you, 2 We're not going to tell you what we spend your 3 money on. 4 I'll close on one lawyer point. 5 Senator Marchi and Senator DeFrancisco talked 6 about the law and the impact of the law. Well, 7 it's a combination of the law and a simple thing 8 that I'm used to saying to my children and they 9 oftentimes box me into a little corner, and the 10 corner is very simple, when they say to me, 11 "Listen, what you're telling us is, 'do as I 12 say, not as I do'." 13 If we don't support this 14 resolution, our message to the rest of this 15 state is exactly that. We want you to abide by 16 the Freedom of Information Act, but we're not 17 prepared to do it. We want to carry on in 18 secrecy. In that view, a Freedom of Information 19 Act becomes the cruelest hoax and the cruelest 20 mandate because we're telling every other level 21 of government to be open, but we're not open 22 ourselves. 23 I'll close on a very lawyer-like 1076 1 point. I'm sure my counsel -- my colleagues who 2 are attorneys will understand there's an old 3 rule of law called the "missing witness" 4 charge. When you go to trial, and you're 5 supposed to produce a witness and the witness 6 doesn't show up, the judge then turns around to 7 the jury and says, This party was required to 8 bring this witness to the podium and to the 9 witness stand. Because they failed to do that, 10 you, the members of the jury, can draw the most 11 adverse inference from their failure to appear. 12 My sense is, all of my 13 colleagues, you fall into the "missing Senate" 14 charge when you vote against this resolution 15 because, in essence, everyone in this state will 16 be able to assume what Senator Leichter assumes, 17 which is that this mailing budget is not used 18 for a legitimate government purpose, to take a 19 message of our achievements and our concerns to 20 our constituents, but instead it's used for 21 blatantly political purposes. 22 It's the taxpayers' money being 23 used by one political organization against 1077 1 another. That's the adverse inference that you 2 will all be subject to, the adverse speculation 3 that you're all going to be a part of unless you 4 vote in favor of disclosure. 5 I would ask all of you, don't 6 take our collective credibility and put it at 7 risk. Our credibility is dependent upon telling 8 the people what we buy and what we pay for and 9 what they're having to pay the bill for. That's 10 what this resolution is designed to do. 11 I understand from Senator Daly 12 and Senator DeFrancisco, I wish it were in a 13 different form. It can be in a different form. 14 I've drafted legislation to make the Freedom of 15 Information Act specifically expressly 16 applicable to the Legislature so there won't be 17 any question in anyone's mind. I'll circulate 18 the bill and those who've expressed support for 19 the concept, I hope you'll sign on. 20 Senator Halperin has already 21 circulated a bill to the members of this body 22 asking this body to support quarterly financial 23 accounting so that we can publish for our 1078 1 constituents the exact same thing that the House 2 of Representatives does. What's good for them 3 must be good for us. 4 We can change the process. The 5 process is already beginning to change. I would 6 simply ask all of you, we're not doing anything 7 that's too broad. We're simply shining a little 8 bit of light in one of those dark nooks and 9 crannies where the taxpayers deserve to have the 10 light turned on. This resolution begins to turn 11 on the first light bulb of what I hope will be a 12 process that will bring this organization from 13 out of the 17th Century and into the 21st 14 Century. 15 Please support this resolution. 16 ACTING PRESIDENT LACK: On the 17 motion to discharge, all those in favor, aye. 18 Contrary nay. 19 SENATOR GOLD: Party vote in the 20 affirmative. 21 ACTING PRESIDENT LACK: Party 22 vote. 23 (The Secretary called the roll. ) 1079 1 THE SECRETARY: Ayes 23, nays 2 34. Party vote. 3 ACTING PRESIDENT LACK: The 4 motion fails. 5 Senator Present. 6 SENATOR PRESENT: Mr. President, 7 in behalf of Senator Levy, I'd like to announce 8 there will be a Republican Majority Conference 9 immediately following adjournment, in 332, and 10 there being no further business, I move we 11 adjourn until tomorrow at 11:30 a.m. 12 ACTING PRESIDENT LACK: There is 13 an immediate conference of the Senate Majority 14 in Room 332. There being no further business, I 15 move we stand adjourned until tomorrow at 11:30 16 a.m. The Senate is adjourned. 17 (Whereupon at 6:16 p.m., the 18 Senate adjourned.) 19 20 21 22 23